The court granted bail despite the NDPS Act's restrictions, citing non-compliance with mandatory provisions and slow trial progress as justifications.

Order

09/05/2025

1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. I have considered the submissions made by both the parties and have perused the material available on record as well as gone through the niceties of the case.

5. On two occasions, the bail application of the petitioner was rejected on the ground of nature and gravity of the offence and the fetter contained under Section 37 of the NDPS Act. It is a case of the prosecution that on 18.02.2025, the petitioner was apprehended by the police on account of having possession of 3.8kgs illicit opium. He was charge- sheeted and whereafter trial got commenced. Till now only four witnesses could have been examined. The petitioner raised a plea that the seizure memo and fact of recovery of contraband is nothing but a sham and for the purpose of asserting the above fact, he moved an application under Section 311 r/w 91 of the Cr.P.C. seeking prayer for calling of call data record, tower location etc. of the members of the team who claimed to have apprehended the accused along with contraband. The said application was allowed by this Court vide order dated 06.11.2024 and the respondent was directed to procure the documents mentioned therein before the trial Court and the parties were given liberty to use the documents during the course of the trial in connection of their respective claims. In pursuance of the order dated 06.11.2024, on several occasions, the learned trial Court had instructed the respondents agency to produce the requisite material but of no avail, the learned trial Court went to say about initiation of contempt proceeding for the defiance caused by the agency in non performing duties and not producing the document as directed. To the utter dismay no heed has been paid and the stubbornness of the agency is writ large.

6. There is an old saying about having “a guilty conscience pricks the mind” and perhaps the respondent agency wilfully and knowingly not producing the documents before the trial Court presumably because if it would be produced, the very foundation of the seizure memo may fall on the Earth, if discrepancy is noticed in the seizure memo and in the call data record and tower location report of the tele- communication agency. There is a presumption which would favour the case of the petitioner under Section 114 (g) of the Evidence Act “that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it”. Presumably though tentatively at this stage, it could be said that the agency is deliberately withholding the production of the document. The accused is behind the bars since last more than 2 and a half year. Thus, looking to the submissions with regard to non-compliance of mandatory provisions particularly Sections 42, 52, 52(a) & 55 of the NDPS Act as well as flout of Standing Order 1/1989 as well as flout of Rule 3, 8, 9, 13, 15 of Rules of 2022 of the NDPS Act and looking to the snail’s pace progress of the trial at this stage, I do not find any justifiable reason to allow further incarceration of the petitioner. In view of