1. This is the second application filed by the applicant under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of bail in connection with Crime No.43/2023, registered at Police Station Narcotics Cell, District Indore (M.P.) for the offence under Sections 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985. The first bail application was dismissed on 02.12.2025 in M.Cr.C.No.52068/2025 with liberty to renew the prayer if trail is not concluded after six months.
2. On the previous date of hearing, status report of the trial was called. As per the status report of the trial Court, out of 12 witnesses, no witness has been examined till date because the prosecution has failed to produce any witness despite issuance of summons/warrants. Therefore, the delay is attributed to the prosecution.
3. It is submitted by the learned counsel for the applicant that the present applicant is in custody since 30.12.2023. It is further submitted that 31 quintal 60 kgs. of poppy straw is alleged to have been recovered from the possession of the applicant and because of the commercial quantity of the contraband said to have been seized from the applicant, he is in custody for more than 2 years and 7 months. However, till date, no witness has been examined before the trial Court. Learned counsel submits that prolonged custody is anathema to the fundamental right of life and liberty guaranteed by Article 21 of the Constitution of India. Long custody without trial infringes the right to fair and speedy trial. The Supreme Court and the Coordinate Bench of this Court have granted bail in similar matters involving commercial quantity of narcotic contraband if the trial is not concluded within one year despite the Bar contained under Section 37(1-B) of the NDPS Act.
4. Per contra, learned counsel for the respondent/State opposes the bail application on the ground of gravity of alleged offence and the huge quantity of contraband seized from his possession.
5. Heard learned counsel for the parties and perused the case diary.
6. In the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh reported in 2024 INSC 534, the Supreme Court referred to the judgment in matter of Union of India Vs. K.A. Najeeb (2021) SCC OnLine SC 50, and considered the grant of bail with reference to Article 21 of the Constitution of India and observed as under :-
32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statue if it finds that the right of the accused under- trial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal stature, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic pat. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statue, bail cannot be granted. It would be run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb(supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us.
7. It is pertinent to mention here that these observations relates to the offence punishable under Sections 489-B and 489-C of the Indian Penal Code and Section 16 of the Unlawful Activities (Prevention) Act, 1967. The Hon'ble Apex Court has granted bail to the applicant in that case.
8. The Supreme Court in the case of Ankur Chaudhary Vs. State of Madhya Pradesh, passed in Special Leave to Appeal (Crl.) No.4648/2024 decided on 28.05.2024, has observed as under :-
Now, on examination, the punch 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.
9. The Hon'ble Apex Court in the aforesaid case after considering the custody period of more than two years has granted bail to the petitioner on the ground that the trial could not be completed within such period which is in violation of Article 221 of the Constitution of India.
10. Considering the socio-economic status of the applicant, there appears to be no likelihood of recidivism or tampering with the evidence or influencing the remaining witnesses by the applicant. The trial is not progressing at an appropriate pace. It will take inordinate time to conclude. There appears to be no compelling reason to continue prolonged incarceration of the applicant. However, the observations, herein-above, are recorded for present application only.
11. Considering the rival contentions and overall circumstances of the case, in the light of aforestated facts, but without commenting on the merits, this Court is inclined to release the applicant on bail. Thus, the application is allowed but with stringent conditions.
12. It is directed that the applicant be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court/committal Court.
13. This order will remain operative subject to compliance of the following conditions by the applicant:-
"i) The applicant will comply with all the terms and conditions of the bond executed by him;
ii) The applicant will cooperate in the investigation/trial, as the case may be;
iii) The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;
iv) The applicant will not commit any other offence or will not repeat the offence in future. In case, if he is found involved in the offence of same nature, this bail order shall stand cancelled automatically without further reference to the Bench.
v) The applicant will not seek unnecessary adjournments during the trial;
vi) The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be;
vii) The applicant shall mark his presence before the concerned Police Station once in a fortnight (every 15 days) till conclusion of the trial.
viii) If any of the aforesaid conditions is violated, then this order shall loose its effect automatically.
ix) If the applicant is found to be involved in any other offence, then this bail order shall stand cancelled automatically."
14. Copy of this order be sent to the trial Court concerned for compliance by the office of this Court.
Certified copy as per rules.
