Vijay Jaitly vs State Of Punjab

Sumeet Goel, J

Present petition has been fileed under Section 483 of the Bharatiya Naagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) for grant of regular bail to the petitioner in case bearing FIR No.178 dated 22.12.2023, registered for the offences punishable underr Sections 21, 22, 29, 61, 85 of the Narcotic Drugs and Psychotropic Substannces Act, 1985 (for short ‘NDPS Act’), at Poliice Station Shambhu, District Patiala.

The gravamen of the FIR in queestion is that the petitioner is an accused of being involved in an FIR pertaining to NDPS Act involving 2400 loose capsules, i.e., Tramadol Hydrrochloride and Dicyclomine Hydrochloridde (1327.2 grams).

Learned counsel for the petitioner has iterated that the petitioner is in custody since 22.12.2023. Learned counnsel for the petitioner has further submitted that the mandatory provisions of the NDPS Act have not been complied witth, and thus, the prosecution casse suffers from inherent defects. Learned counsel for the petitioner has iteratted that the trial is delayed and the liability thereof cannot be fastened upon the petitioner. Learned counsel has further iterated that the petitioner has suffered incarceration for more than 01 year & 07 months. Thus, regular bail is prayed for.

Learned State counsel has oppposed the present petition by arguing that the allegations raised against thee petitioner are serious in nature and, thus, hee does not deserve the concessiion of the regular bail. Learned State counsel has further submitted that the instant bail plea is barred by the rigors of Section 37 of the NDPS Act, annd thus, the same ought to be dismissed. Learned State counsel seeks to plaace on record custody certificate dated 06.08.2025 in Court, which is taken on record.

I have heard counsel for the rivaal parties and have gone through the available records of the case.

The petitioner was arrested on 22.12.2023 whereinafter investigation was carried out and challan was presented on 15.06.2024 and the charges were framed on 22.11.2024. Totaal 13 prosecution witnesses have been cited, and only 05 have been examinedd till date. The rival contentions raised at Bar give rise to debatable issues shhall be ratiocinated upon during the course of trial. This Court does not deem it appropriate to delve deep into these rival coontentions, at this stage, lest it may prejudice the trial. Nothing tangible has been brought forward to indicate the likelihood of the petitioner absconding from the process of justice or interfering with the prosecution evidence.

6.1. A perusal of the zimni orders paassed by the trial Court, brought forth by the petitioner, indicates that the trial is indeed procrastinating and folly thereof cannot be saddled upon thhe petitioner. As per custody certificate daated 06.08.2025 filed by the learned State counsel, the petitioner has already suffered incarceration for a period of more than 01 year, 07 months and 13 days. In this view of the matter, the rigor imposed under Section 37 of the NDPS Act stands diluted in light of the Article 21 of the Constitution of India.

6.2. This Court in a judgment titledd as Kulwinder versus State of Punjab passeed in CRM-M-64074-2024 (20225:PHHC:002695); after relying upon the ratiio decidendi of the judgments off the Hon’ble Supreme Court in Hussainara Khatoon vs. Home Secy., State of Bihar (1980) 1 SCC 81; Abdul Rehman Anttulay vs R.S. Nayak (1992) 1 SCC 225; Javed Gulam Nabi Shaikh vs. State of Maharashtra and anotherr, 2024(3) RCR (Criminal) 494; Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported as 2023 INSC 311; Criminnal Appeal No.245/2020 dated 07.02.2020 titled as “Chitta Biswas Aliass Subhas vs. The State of West Bengal”; “Nitish Adhikary @ Bapan vs. The State of West Bengal”, Special Leave to Appeal (Crl.) No.5530-20222 dated 22.08.2022 titled as “Mohammad Salman Hanif Shaikh vs. The Staate of Gujarat”; Criminal Apppeal No.1169 of 2022 dated 05.08.2022 titled as Gopal Krishna Patra @ Gopalrusma vs. Union of India, and Ankur Chaudhary vs. State of Maadhya Pradesh, 2024(4) RCR (Criminal) 1772; has held, thus:

“7.8. The right to a speedyy and expeditious trial is not only a vital safeguard to prevent undue and oppressive incarceration; to mitigate anxiety and concern accompanying thhe accusation as well as to curtail any impairment in the ability of an accussed to defend himself, but there is an overarching societal interest paving way for a speedy trial. This right has been repeatedly actuated in the recennt past and the ratio decidendi of the above-referred to Supreme Court’s judgments have laid down a series of decisions opening up new vistas of fundamental rights. The concept of speedy trial is amalgamated into the Article 21 as an essential part of the fundamental right to life and liberty, guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed at the time of the arresst of the accused and consequent incarceration which continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result due to impermissible and avoidable delay since the time of the commission of the offence till the criminal proceedings consummate into a finality, could be averted. The speedy trial, early hearing and quick disposal are sine quua non of criminal jurisprudence. The overcrowded Court-dockets, the heavvy volume of work and the resultant pressure on the prosecution and the Police, indubitably keeps the entire criminal jurisprudential mechanism under stress and strain. However, this cannot be an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of timme. It does not serve any credit to the criminal justice system, rather it makes for a sad state of affairs. The guarantee of a speedy trial is intendded to avoid oppression and prevent delay by imposing on the Court annd the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. Firstly, it protects the accused against oppressive pre-trial imprisonment; secondly, it relieeves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost or memories dimmed by the passage of time, thus, impairing thhe ability of the accused to defend himself. It goes without saying that thhe consequences of pre-trial detention are grave. Accused, presumed innocent, till proven otherwise, are subjected to psychological and physsical deprivations of jail-life, usually under onerous conditions. Equally i mportant, the burden of detention of such an accused frequently falls heavily on the innocent members of his family.

There is yet another aspect of the matter which deserves consideration at this stage. The allegations in the present case relate to accused being involved in an FIR relating to commercial quantity of contraband under the NDPS Act, 19885. While considering a bail petition in a case involving commercial quanttity, the Court has to keep in mind the rigours enumerated under Section 37 of NDPS Act, 1985 which mandates that Courts can grant bail to an acccused only after hearing the public prosecutor and after having satisfiedd itself of twin conditions which are reasonable grounds for believing thhat the accused is not guilty of the offence charged/alleged and that, he is not likely to commit any offence while on bail. The stringent rigours of Section 37 of the NDPS Act, 1985 must be meticulously scrutinized against the backdrop of accused’s fundamental right to a speedy trial. The right to life and personal liberty cannot be rendered nugatory by unwaarranted delays in the judicial process, particularly where such delay(s) is neither attributable to the accused nor justified at the end of the prosecutioon by cogent reasons. An individual cannot be kept behind bars for an inordinate period of time by taking refuge in rigours laid down in Section 37 of the NDPS Act, 1985. The legislature in its wisdom, in order to ensure speedy and timely disposal of the cases under the Act, has provided for the constitution of special Courts under Section 36-A of the Act. However, this Court cannot turn Nelson’s eye to the protracted delays and systematic inefficiency that frustrate this legislative purpose. A Court of law is duty-bound to ensure that it does not become complicit in violation of an individual’s fundamental rights, notwithstanding anything contained in a statute. While dealing with bail petition in a case governed by the riggours of Section 37 of the NDPS Act, 1985, the Court must strike a judicious balance between the legislative intent to curb the menace of drugs annd the sacrosanct right of the accused to a fair and expeditious trial. Prolonnged incarceration, without justifiable cause, risks transforming pre-trial detention into punitive imprisonment,, an outcome antithetical to the principle of justice and equity.

Ergo, the unequivocal inference is that where the trial has failed to conclude within a reasonable time, resulting in prolonged incarceration, it militates against thee precious fundamental rights of life and liberty granted under the law and, as such, conditional liberty overriding the statutory embargo creeated under Section 37 of the NDPS Act, 1985 ought to be considered ass per facts of a given case. In other words, grant of bail in a case pertaiining to commercial quantity, on the ground of undue delay in trial, cannoot be said to be fettered by Section 37 of the NDPS Act, 1985.”

6.3. Further, as per the said custoody certificate the petitioner is stated to be involved in 01 more case, in whiich the production warrants have been issued against him. However, this factuum cannot be a ground sufficient by itself, to decline the concession of regularr bail to the petitioner in the FIR in question when a case is made out for grannt of regular bail qua the FIR in question by ratiocinating upon the facts/circumstances of the said FIR. Reliance in this regard can be placed uponn the judgment of the Hon’ble Supreme Coourt in Maulana Mohd. Amir Rashadi v. State of U.P. and another, 2012 (1) RCR (Criminal) 586; a Division Bench judgment of the Hon’ble Calccutta High Court in case of Sridhar Das v. State, 1998 (2) RCR (Criminal) 477 & judgments of this Court inn CRM-M No.38822-2022 titled as Akhilesh Singh v. State of Haryana, decidded on 29.11.2021, and Balraj v. State of Haryyana, 1998 (3) RCR (Criminal) 191. Suffice to say, further detenntion of the petitioner as an undertrial is not warranted in the facts and circumstances of the case.

In view of above, the present petition is allowed. Petitioner is ordered to bee released on regular bail on hiss furnishing bail/surety bonds to the satisfaction of the Ld. concerned trial Court/Duty Magistrate. However, in addition to conditions that may be immposed by the concerned trial Court/Duty Magistrate, the petitioner shall remain bound by the following conditions:-

(i) The petitioner shall not mis-use the liberty granted.

(ii) The petitioner shall not taamper with any evidence, oral or documentary, during the trial.

(iii) The petitioner shall not abbsent himself on any date before the trial.

(iv) The petitioner shall not commit any offence while on bail.

(v) The petitioner shall deposit his passport, if any, with the trial Court.

(vi) The petitioner shall givee his cellphone number to the Investigating Officer/SHO of concerned Police Station and shall not change his cell-phone number without prior permission of the trial Court/Illaqa Magistrate.

(vii) The petitioner shall not in any manner try to delay the trial.

(viii) The petitioner shall submmit, on the first working day of every month, an affidavvit, before the concerned trial Court, to the effect thatt he has not been involved in commission of any offennce after being released on bail. In case the petitioner is found to be involved in any offence after his being enlarged on bail in the present FIR, on the basis of his afffidavit or otherwise, the State is mandated to move, forthwwith, for cancellation of his bail which plea, but of courrse, shall be ratiocinated upon merits thereof.

In case of breach of any of the aforesaid conditions and those which may be imposed by concerned trial Coourt/Duty Magistrate as directed hereinabove or upon showing any other sufficient cause, the State/complaainant shall be at liberty to moove cancellation of bail of the petitioner.

Ordered accordingly.

Nothing said hereinabove shall be construed as an expression of opinion on thhe merits of the case.

Since the main case has been decided, pending miscellaneous application, if any, shall also stands disposed off.