1. This is the third petition filed under Section 439 Cr.P.C for grant of regular bail to the petitioner in FIR No.14 dated 11.02.2022 registered under Section 22 of the NDPS Act, 1985, at Police Station Khanauri, District Sangrur.

2. Learned counsel for the petitioner has submitted that the petitioner is in custody since 11.02.2022 and the investigation is complete and challan has been presented and there are 15 prosecution witnesses, out of which, 4 witnesses have been examined as yet and the conclusion of trial is likely to take time. It is further submitted that the present petitioner is not involved in any other case and that last bail application of the petitioner was dismissed as withdrawn at that stage on 27.03.2023 and thereafter, 1 of 10 ::: Downloaded on - 22-09-2023 01:46:10 ::: Neutral Citation No:=2023:PHHC:123882 CRM-M-38103-2023 [2] 2023:PHHC:123882 sufficient time has lapsed but the trial has not concluded. It is contended that any further incarceration would be violative of the right of the petitioner enshrined under Article 21 of the Constitution of India. Learned counsel for the petitioner has relied upon various orders of the Hon'ble Supreme Court, wherein, solely on the basis of the custody, the bail has been granted. Reliance has also been placed upon an order of the Hon'ble Division Bench of this Court in CRM-3773-2019 in CRA-D-198-DB-2017 in case titled as "Bhupender Singh Vs. Narcotic Control Bureau".

3. On the other hand, learned State counsel has opposed the present petition for grant of regular bail to the petitioner and has submitted that recovery from the present petitioner and other co-accused is of commercial quantity and thus, the bar under Section 37 of the NDPS Act would apply in the present case and thus, the petitioner does not deserve the concession of regular bail.

4. This Court has heard learned counsel for the parties and has gone through the paper-book.

5. Hon'ble the Supreme Court vide order dated 04.05.2023 passed in Special Leave to Appeal (Crl.) No(s).3221/2023 in case titled as Hasanujjaman and others Vs. The State of West Bengal , had observed as under:-

6. A perusal of the same would show that in the abovesaid case, the custody of the accused was 1 year and 4 months and while taking into consideration the fact that investigation has been completed as well as that the conclusion of trial would take time, the Hon'ble Supreme Court was pleased to grant the concession of regular bail to the petitioners therein.

7. Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled as " Chitta Biswas Alias Subhas Vs. The State of West Bengal ", vide order dated 07.02.2020, was pleased to grant concession of bail to the petitioner (therein) in a case where the custody was of 1 year and 7 months 3 of 10 ::: Downloaded on - 22-09-2023 01:46:10 ::: Neutral Citation No:=2023:PHHC:123882 CRM-M-38103-2023 [4] 2023:PHHC:123882 approximately. The relevant portion of the said order dated 07.02.2020 is as under: -

4 of 10 ::: Downloaded on - 22-09-2023 01:46:10 ::: Neutral Citation No:=2023:PHHC:123882 CRM-M-38103-2023 [5] 2023:PHHC:123882 and participation of the appellant in the pending trial. With the aforesaid directions, the appeal stands allowed."

8. The Hon'ble Supreme Court in case titled as " Mohammad Salman Hanif Shaikh Vs. The State of Gujarat , vide order dated 22.08.2022 passed in Special Leave to Appeal (Crl.) No.5530-2022 was pleased to observe as under: -

9. The above-said case was also a case under the NDPS Act and the FIR had been registered under Sections 8(c) , 21(c) and 29 of the said Act. The case of the prosecution therein was that the recovery from the said petitioner (therein) was of commercial quantity. The Hon'ble Supreme Court had observed that the concession of bail was being granted to the petitioner (therein) only on the ground that he had spent about two years in custody and the conclusion of trial will take some time.

10. In another case i.e., Criminal Appeal No.1169 of 2022 titled as 5 of 10 ::: Downloaded on - 22-09-2023 01:46:10 ::: Neutral Citation No:=2023:PHHC:123882 CRM-M-38103-2023 [6] 2023: PHHC:123882 "Gopal Krishna Patra @ Gopalrusma Vs. Union of India ,", vide order dated 05.08.2022, the Hon'ble Supreme Court was pleased to observe as under: -

The appeal is allowed in aforesaid terms."

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11. A perusal of the above-said order would show that in the said case also the custody was of approximately 2 years, 1 month and 17 days and the case was under the NDPS Act and primarily, considering the longevity of the custody period, concession of bail was granted to the petitioner (therein).

12. The Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.) No.5769/2022 titled as " Nitish Adhikary @ Bapan Vs. The State of West Bengal ", vide order dated 01.08.2022, was pleased to observe as under: -

13. A perusal of the said order would also show that the said case was under the NDPS Act and the provision of Section 37 of the NDPS Act were also mentioned in the same and the bail was granted primarily by considering the petitioner (therein) had undergone custody for a period of 01 year and 07 months and only one witness had been examined and that the petitioner (therein) did not have any criminal antecedents.

14. The Hon'ble Division Bench of this Court in Bhupender's case (Supra), had also held that in case, the accused person is able to make out a case within the parameters of Article 21 of the Constitution of India on the basis of period of custody, then he deserves the concession of regular bail, even in the face of rigors of Section 37 of the NDPS Act.

15. A Coordinate Bench of this Court vide order dated 24.04.2023 passed in CRM-M-19626-2022 titled as Roop Singh Vs. State of Punjab has granted the concession of regular bail in a case involving recovery of commercial quantity of poppy husk where the custody was for a period of 1 year, 6 months and 26 days on the ground of long incarceration of the accused person being in violation of right of the accused for speedy trial enshrined under Article 21 of the Constitution of India.

16. In the present case, the petitioner is in custody since 11.02.2022 and the investigation is complete and challan has been presented and out of 8 of 10 ::: Downloaded on - 22-09-2023 01:46:10 ::: Neutral Citation No:=2023:PHHC:123882 CRM-M-38103-2023 [9] 2023:PHHC:123882 15 prosecution witnesses, 4 witnesses have been examined and thus, the conclusion of trial is likely to take time. The present petitioner is stated to be not involved in any other case and thus, keeping the petitioner in further incarceration would be violative of her right enshrined under Article 21 of the Constitution of India.

17. Keeping in view the above-said facts and circumstances as well as the law laid down in the above-said judgments, the present petition is allowed and the petitioner is directed to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to him not being required in any other case. The petitioner shall also abide by the following conditions:-

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18. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail before this Court.

19. Nothing stated above shall be construed as a final expression of opinion on the merits of the case and the trial Court would proceed independently of the observations made in the present case which are only for the purpose of adjudicating the present bail petition.

20. All the pending miscellaneous applications, if any, shall stand disposed of in view of the abovesaid judgment.

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