Prolonged incarceration and undue delay in trial can override the statutory restrictions of Section 37 of the NDPS Act, as the right to a speedy trial under Article 21 of the Constitution takes precedence over statutory embargoes.

Manisha Batra, J. (Oral).

Instant petition has been filed by the petitioner for grant of regular bail in case arising out of FIR No.04, dated 09.01.2024, registered under Sections 21-C and 29 of the NDPS Act, at Police Station STF Mohali, District Amritsar.

As per the allegations, on 09.01.2024, on receipt of a secret information to the effect that the petitioner along with co-accused Gopi were indulged in the business of selling heroin and on that very day also, he was present in front of Kanwar Farm along with large quantity of contraband and could be apprehended, if a raid was conducted, a police party was immediately formed, which reached at the informed place and apprehended the petitioner along with co-accused Gabrial @ Gabby, whereas Gopi had managed to flee. On conducting search, 400 grams of heroin was recovered from the right pocket of the pant of the petitioner, whereas 300 grams of heroin was recovered from the conscious possession of co-accused Gabrial @ Gabby. The car in which the petitioner and co-accused were riding had also been taken into possession, which was shown to be sold to co-accused Sandeep @ Seepa with the registered owner, who too was nominated as an additional accused. Investigation qua the present petitioner and other arrested accused stands concluded.

It is argued by learned counsel for the petitioner that he has been falsely implicated in this case. A false recovery has been planted upon him. The mandatory provisions of the NDPS Act had not been complied with at the time of effecting the alleged recovery. He is in custody for a period of 02 years and 22 days. There are no chances of conclusion of the trial in near future as still 10 prosecution witnesses remain to be examined. His further incarceration would not serve any useful purpose. He is not involved in any other case of similar nature. It is, thus, argued that he deserves to be extended the benefit of bail.

Per contra, learned State counsel while relying upon the pleas as taken in the status report has argued that keeping in view the gravity of the allegations as levelled against the petitioner, he does not deserve to be extended the benefit of bail.

This Court has heard the rival submissions made by learned counsel for the parties.

The petitioner alongwith co-accused is alleged to have been found in conscious possession of commercial quantity of contraband. The allegations make out a prima facie case for commission of the subject offence against him. He is in custody for a period of 02 years and 22 days. The chances of conclusion of trial are bleak as a substantive number of witnesses is yet to be examined. He has clean antecedents. It is well settled proposition of law that grant of bail on account of delay in trial and long period of incarceration is to be considered in the light of Section 37 of the NDPS Act. Reliance in this regard can be placed upon the observations made by Hon’ble Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, wherein it was held that grant of bail on account of undue delay in trial cannot be said to be fettered under Section 37 of the NDPS Act, given the imperative of Section 436-A of Cr.P.C. which is applicable to offence under the Act. It was also observed that jails are overcrowded and their living conditions are, more often than not, appalling. The danger of unjustified imprisonment is that inmates are more likely to be hardened rather than reformed. Reliance can also be placed upon Manmandal and Another v. State of West Bengal , Special Leave Petition (Criminal) No.8656 of 2023 decided on 14.09.2023 and Rabi Prakash v. State of Odisha , 2023 Live Law (SC) 533, wherein the Hon’ble Supreme Court had extended benefit of bail to the accused who had been incarcerated for a long period by observing that prolonged incarceration militated against the most precious fundamental right guaranteed under Article 21 of the Constitution and in s