1. Petitioner is accused in case registered vide NCB Crime No. 41/2021 dated 13.06.2021 under Sections 8, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) by the Narcotic Control Bureau (for short NCB), Sub Zone, Mandi District Mandi H.P.

2. Petitioner has approached this Court for grant of bail in the above noted case under Section 439 of Cr.P.C. on the grounds that the petitioner is innocent and has been implicated falsely in the case. As per petitioner, nothing has been recovered from him or at his instance. Further, the petitioner has sought the bail on the ground that his right to speedy trial has been violated. Petitioner is ready and willing to abide by all conditions as may be imposed. Petitioner has undertaken not to threaten, allure and induce prosecution witnesses. Petitioner alleges to be permanent resident of Ward No. 12, Behleen Phatti, Banwari Garh, District Sangroor, Punjab.

3. On notice, respondent has placed on record status report. As per respondent, Intelligence Officer of NCB at Chandigarh, received a secret information that one person namely Simranjeet Singh (petitioner), S/o Sh. Nirmal Singh has purchased Charas in District Kullu and will be transporting the same to Chandigarh on 13.06.2021. On such secret information, a team was constituted by the Zonal Director, NCB, Chandigarh. The team of NCB laid a Naka at Pulghrat on 13.06.2021. Municipal Councillor of the area Sh. Yog Raj along with LHHC No.235 Smt. Champa were associated as independent witnesses. At about 5.40 P.M., a Motorcycle bearing No. PB-13AD-2700 was intercepted. Petitioner was the rider and Amanpreet Kaur was on the pillion.

4. After necessary formalities, a search was conducted. 526 grams of Charas was recovered from a bag being carried by co-accused Amanpreet Kaur on her back and 780 grams of Charas was found in another bag tied to the Motorcycle. Thus, total 1.306 Kgs. of Charas was recovered.

5. The bail of the petitioner has been opposed on the grounds that he is not entitled to bail having committed heinous offence. It has been submitted that petitioner is disentitled from getting the bail on account of the application of rigors of Section 37 of the NDPS Act. It is further contended that the petitioner on earlier occasion had also approached this Court for grant of bail in the same case, but had remained unsuccessful. It has been pointed out that for the first time, petitioner filed bail petition Cr.MP(M) No.2825 of 2022, which was dismissed as withdrawn by this Court vide order dated 13.01.2023.

6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

7. Indisputably, the successive bail application on behalf of an accused is maintainable only in changed circumstances. In the case in hand, the prayer has been made to release the petitioner on bail on the ground that his constitutional right of speedy trial has been violated. Petitioner is in custody for more than two years now and his trial has not yet concluded. In my considered view, the petitioner has made out a case of changed circumstance and in such background, the present petition is being considered.

8. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provision of Section 37 of the Act, be construed to have same efficacy throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial.

9. As is suggested by the contents of status report, recording of prosecution evidence is still in progress despite the fact that petitioner is in custody since 13.06.2021. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&Ps Act in perpetuity.

10. Recently, in a number of cases, under-trials for offences involving commercial quantity of contraband under ND&PS Act have been allowed the liberty of bail by Hon’ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

11. In Mahmood Kurdeya Vs. Narcotic Control Bureau (2022) 3 RCR (Criminal) 906, [LQ/SC/2021/3586] Hon’ble Supreme Court has held as under: -

“6.What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced.”

12. In Nitish Adhikary @ Bapan Vs.The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, Hon’ble Supreme Court has held as under:-

“During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

13. In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022, Hon’ble Supreme Court has held as under: -

“ The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishable under Sections 8,20,27-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1098.

The application seeking relief of bail having been rejected, the instant appeal has been fled.

We have heard Mr. Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr. Sanjay Jain, learned Additional Solicitor General for the respondent.

Considering the fact and circumstances on record and the length of custody undergone by the appellant, in our view the case for bail is made out.”

14. In Chitta Biswas @ Subhas Vs. The State of West Bengal, (Criminal Appeal No.(s) 245 of 2020, decided on 07.02.2020, it has been held as under:-

“The appellant was arrested on 21.07.2018 and continues to be custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.

Without expressing any opinion on the merits or demerits of the rival submission and considering the facts and circumstances on record, in our view, case for bail is made out.”

15. In Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir (Special Leave to Appeal (Cr.L.) No. 3961 of 2022, decided on 01.08.2022, it has been held as under:-

“Having regard to the fact that the petitioner is reported to be in jail since 1-3-2020 and has suffered incarceration for over 2 years and 5 months and there being no likelihood of completion of trial in the near future, which fact cannot be controverted by the learned counsel appearing for the UT, we are inclined to enlarge the petitioner on bail.”.

16. In addition, different Co-ordinate Benches of this Court have also followed precedent to grant bail to the accused in ND&PS Act, on the ground of prolonged pre-trial incarceration. Reference can be made to order dated 28.07.2022, passed in Cr.MP(M) No. 1255 of 2022, order dated 01.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of 2022.

17. In Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi), Hon’ble Supreme Court, vide its judgment dated 28.03.2023, has held as under: -

“21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were under-trials.

22. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State21 as“a radical transformation” whereby the prisoner:

“loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.”

23. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer’s ‘The Prison Community’ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/ PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

18. Recently in Special Leave to Appeal (Crl.) No. 1904 of 2023, titled Sunil Kumar vs. State of Himachal Pradesh, the Hon’ble Supreme Court has granted the bail to an accused charged with having commercial quantity of contraband in following terms:

“Heard the learned counsel for the petitioner and perused the petition papers.

It is noted that the petitioner has been in custody for more than one and a half years and the trial is yet to conclude. Earlier, the petitioner had been granted interim bail on two occasions and has not misused the liberty of interim bail or violated any of the bail conditions imposed upon him but has thereafter, surrendered back.

Therefore, keeping all these aspects in view, the petitioner is ordered to be released on bail subject to appropriate conditions being imposed by the trial Court including the condition that the petitioner shall diligently participate in the trial.

Ordered accordingly. Petition is accordingly disposed of.”

19. Reverting to the facts of the case, the petitioner is in custody since 13.6.2021 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that delay in trial is attributable to the petitioner. The co-accused in the case with identical allegations has already been released on bail.

20. Keeping in view the facts of the case and also the above noted precedents, the bail petition is allowed and petitioner is ordered to be released on bail in case registered vide NCB Crime No. 41/2021 dated 13.06.2021 under Sections 8, 20 and 29 of the NDPS Act by the Narcotic Control Bureau, Sub Zone, Mandi, District Mandi H.P., on his furnishing personal bond in the sum of Rs.1,00,000/-(Rupees One lacs) with one surety in the like amount to the satisfaction of learned trial court. This order shall, however, be subject to the following conditions: -

i) Petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.

ii) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.

iii) Petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail.

(iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial.

21. Any expression of opinion herein-above shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.