Bail under NDPS Act can be granted considering prolonged custody and hostile witness testimonies weakening the prosecution's case.

Order

30/06/2025

1. This second bail application under Section 483 of BNSS has been filed, on behalf of the petitioner, who has been arrested in connection with FIR No.387/2023 registered at Police Station Vijay Nagar, District Beawar for the offence punishable under Section 8 /15 of NDPS Act . After completion of investigation, police filed charge-sheet in this matter.

2. The first bail application filed on behalf of the petitioner was dismissed as withdrawn by this Court vide order dated 03.01.2025 while giving liberty to the petitioner to renew the prayer for bail after recording testimony of Seizure Officer. Now, Seizure Officer as well as independent witnesses have been examined during the course of trial thus, this second bail application has been preferred. 3. It is contended by learned counsel for the petitioner that the accused-petitioner has falsely been implicated in this case. It is submitted that both independent witnesses have not supported the prosecution case and they have been declared hostile. It is submitted that false case has been instituted against the petitioner as the petitioner was already in custody of the police and for this reason, he moved an application before learned trial court to summon the call details of the raiding party and location of petitioner’s vehicle and same was accepted by learned trial court vide order dated 29.07.2024 but till date, location and call details have not been produced by Investigating Agency. It is submitted that petitioner is in custody since 08.11.2023 and as such, he has suffered incarceration of more than 19 months. It is argued that Hon’ble Supreme Court has taken the view in the matter of Devendra Kumar Mishra @ Bade Guru vs. The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No.14639/2023 that on the ground of period of incarceration suffered by accused, bail application under the NDPS Act can be considered for grant. Further reliance has been placed upon the judgment of Hon’ble Supreme Court in the case of Shambhulal Gurjar @ Rohit vs. State of Rajasthan in Special Leave to Appeal (Crl.) No.16671/2024 wherein after taking note of the fact that three other cases under the NDPS Act have been registered against the petitioner, facility of bail was granted to the accused considering the period of incarceration. Learned counsel has further placed reliance upon the order of Hon’ble Supreme Court in the case of Omprakash Repswal vs. State of Chhattisgarh in Criminal Appeal No.1831/2025 (Arising out of S.L.P. (Criminal) No.3125/2025) wherein after considering the fact that independent witnesses have not supported the prosecution case, facility of bail was granted to the accused by observing that as the three witnesses have turned hostile, prima facie, it will be very difficult for the prosecution to prove the recovery. It is contended that petitioner has no criminal antecedents of similar nature. Counsel further contends that there is bleak chance of culmination of trial in near future as till date only three witnesses have been examined out of fifteen cited prosecution witnesses and further custody of the petitioner would not serve any fruitful purpose.

4. Learned Public Prosecutor vehemently opposes the submissions made by learned counsel for the petitioner. He submits that commercial quantity of contraband has been recovered in this matter therefore, in view of the bar under Section 37 of the NDPS Act , bail should not be granted to the petitioner.

5. I have considered the contentions.

6. Having regard to the totality of the facts and circumstances of the case; considering the argu