Ms. Divya Gulati, Advocate for & Anr. v. State of West Bengal & Anr.

Ms. Divya Gulati, Advocate for the petitioner. Mr. Neeraj Poswal, AAG, Haryana. *** MANISHA BATRA, J. (Oral)

#1. The instant one is the second petition filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by the petitioner seeking grant of regular bail in case bearing FIR No. 409 dated 08.11.2023, registered under Sections 15 and 29 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short ‘NDPS Act’) at Police Station Mullana, District Ambala. His previous petition was dismissed as withdrawn.

#2. As per the allegations, on the basis of a secret information, the petitioner was apprehended by a police party on 08.11.2023 when he was coming in a truck bearing registration number PB-23T-0941, which was driven by him. On search of the said truck, recovery of 365 kgs. of poppy husk CRM-M-18675-2026 (O&M) -2- was effected. Since the petitioner could not produce any valid license or permit to keep in his possession the recovered contraband, he was formally arrested at the spot. Some other persons were also nominated in this case as co-accused. Investigation now stands completed and the petitioner along with the co-accused is facing trial for commission of the aforementioned offences.

#3. It is argued by learned counsel for the petitioner that he has been falsely implicated in this case and a false recovery has been planted upon him. He was simply the driver of the said truck. He is in custody for a period over two years and five months. There is prolonged pendency of the trial in the present case, and there is no likelihood of its conclusion in the near future, particularly as only one prosecution witness has been examined so far out of total eighteen witnesses. The extended period of his incarceration is a sufficient and new ground to seek concession of bail to him. Pendency of one more case against him cannot be made a reason to deny him bail in this case in the given circumstances. His continued detention would not serve any useful purpose. With these broad submissions, it is urged that the petition deserves to be allowed.

#5. Notice of motion. Learned State counsel has advance notice of the petition and is ready to argue the matter. He has filed the custody certificate of the petitioner. It is argued by him that taking into consideration the gravity of the allegations levelled against the petitioner as well as the fact that commercial quantity of the contraband was recovered from him, he does not deserve to be released on bail. Therefore, it is stressed that the petition does not deserve to be allowed. CRM-M-18675-2026 (O&M) -3-

#6. This Court has heard learned counsel for the parties at considerable length.

#7. The petitioner is alleged to be found in conscious possession of commercial quantity of contraband. He is in custody since 08.11.2023 and has spent a period of more than two years and five months in custody. Obviously the trial is likely to take time to conclude as only one prosecution witness has been examined so far. This factor, in the opinion of this Court, is a ground to move for bail afresh. The Hon’ble Apex Court has observed in a catena of cases that an accused cannot be kept in custody for an indefinite period of time, and the bail application can be considered on its own merits even if it is filed repeatedly. It has also been held that every day spent in custody can provide a new cause of action for filing a bail application under certain circumstances. This principle is a part of the broader approach emphasizing that law prefers bail over jail, aiming to balance the rights of the accused with the requirements of the criminal justice system. Prolonged detention itself is a ground for reconsideration of bail since the settled principle of law is that detention prior to trial should not become punitive. It is well settled proposition of law that grant of bail on account of delay in trial and long period of incarceration is to be considered in the light of Section 37 of the NDPS Act. Reliance in this regard can be placed upon the observations made by Hon’ble Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, wherein it was held that grant of bail on account of undue delay in trial cannot be said to be fettered under Section 37 of the NDPS Act, given the imperative of Section 436-A of Cr.P.C. which is applicable to offence under CRM-M-18675-2026 (O&M) -4- the Act. It was also observed that jails are overcrowded and their living conditions are, more often than not, appalling. The danger of unjustified imprisonment is that inmates are more likely to be hardened rather than reformed. Reliance can also be placed upon Manmandal and Another v. State of West Bengal, Special Leave Petition (Criminal) No.8656 of 2023 decided on 14.09.2023 and Rabi Prakash v. State of Odisha, 2023 SCC Online SC 110, wherein the Hon’ble Supreme Court had extended benefit of bail to the accused who had been incarcerated for a long period by observing that prolonged incarceration militated against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the constitutional principles must override the statutory embargo contained under Section 37 of the NDPS Act.

#8. Reliance can also be placed upon the order dated 14.11.2025 passed by the Hon’ble Supreme Court in Santosh Pawar Vs. State of Chhattishgarh & Anr., Criminal Appeal No.4883/2025, wherein it was observed that rigours of Section 37 of NDPS Act will not be a bar for considering the case of an accused for bail as it comes with a condition that the prosecution would press for an early completion of trial. In the above- mentioned case the Hon’ble Supreme Court held that appellant who was being prosecuted for being in possession of commercial quantity of narcotic substance, was entitled for bail in view of her incarceration for a period of 19 months.

#9. Similarly in another case i.e. in the case of Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 prolonged CRM-M-18675-2026 (O&M) -5- incarceration and inordinate delay engaged the attention of the Hon’ble Supreme Court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply.

#10. In the case of Ismail Khan @ Pathan vs. State of Rajasthan Criminal Appeal No.4911 of 2025 with regard to recovery of commercial quantity of narcotic substance, the Hon’ble Supreme Court accorded the benefit of bail to the accused in view of prolonged incarceration for a period of 02 years and 08 months of the accused.

#11. The similar benefit has been extended in another appeal i.e. SLP No.15699-2025 titled as Ebrahim @ Ibrahim SK vs. The State of West Bengal and in the case of Pamesh Arora vs. UT Chandigarh Criminal Appeal No.4872 of 2025.

#12. On analyzing the peculiar facts and circumstances of the present case in the light of the aforementioned principles of law, it transpires that the petitioner has suffered prolonged incarceration, the trial is not likely to be concluded in near future, he has clean antecedents; the continued detention of the petitioner is not likely to serve any fruitful purpose and there is nothing on record to show that if released on bail, the petitioner will not participate in the trial or will abscond.

#13. In view of the above discussion, this Court is of the opinion that a case is made out for grant of bail to the petitioner at this stage. Accordingly, CRM-M-18675-2026 (O&M) -6- the petition is allowed and the petitioner is ordered to be released on bail on his furnishing personal as well as surety bonds to the satisfaction of the learned trial Court, and subject to the condition that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case. He shall appear before the learned trial Court on each and every date of hearing except when his presence is exempted by the trial Court.

#14. It is clarified that the observations made above shall not be construed as an expression of opinion of this Court on the merits of the case and shall not influence the outcome of the trial in any manner.

16.07.2026 Ansari Waseem R. Ansari Waseem R. Ansari Ansari Waseem R. Waseem R. (MANISHA BATRA) JUDGE Whether speaking/reasoned Whether reportable Yes/No Yes/No