IMPORTANT POINT
Prolonged incarceration without trial can override statutory restrictions on bail under the NDPS Act, in light of the fundamental right to liberty under Article 21 of the Constitution.

JUDGMENT :

J.K. Maheshwari, J.

The petitioner is in custody since last more than two years in connection with FIR No. 305 of 2022 registered at Police Station-Chandan Nagar, District Indore (M.P.) for the offence punishable under Section 8 read with Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act” for brevity).

2. Previously, when the petitioner approached this Court, vide order dated 15.5.2023, his bail petition was not entertained. However, liberty was granted to approach the trial Court for bail, after the examination of the panch witnesses.

3. Learned counsel for the petitioner submits that the panch witnesses viz., PW3 (Sunder Pal) and PW4 (Vinod Rathore) have been examined and they have not supported the case of prosecution. On being applied afresh, the trial Court rejected his bail application only on the pretext that the Investigation Officer may also be a panch witness who has yet to examine. The High Court also rejected the bail application affirming those findings by the impugned order.

4. Learned counsel appearing on behalf of the respondent-State submits that in the facts of this case, the Investigation Officer may be treated as panch witness; therefore, the High Court has rightly rejected the bail application.

5. Heard learned counsel for the parties. We have considered the facts and all attending circumstances including the period of custody and also the previous orders where this Court while rejecting the bail was of the view that after the panch witness depose, fresh recourse may be taken.

6. Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.

7. In view of the above, we are inclined to allow this petition and direct to enlarge the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the trial Court.

8. It is needless to observe that the petitioner shall regularly attend the trial until exempted by the orders of the Court. Violation, if any, may give a cause to take recourse as permissible and the trial Court would be at liberty to do the needful.

9. Accordingly, and in view of the foregoing, this Special Leave Petition stands allowed. Pending applications(s), if any, shall stand disposed of.