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Judgment
Learned counsel for the petitioner submits that after dismissal of the first bail application, there was change in circumstances. Though charges were framed by learned Trial Court on 20.05.2025, out of 23 prosecution witnesses, only 1 was examined and second prosecution witness was examined partly. Petitioner was in judicial lock up since 05.08.2023 i.e. for the last about 2 years and 8 months. He further submitted that case against the petitioner was based on disclosure statements. Neither any contraband nor money was recovered from possession of the petitioner at the time of his arrest. Petitioner allegedly had telephonic conversation with co-accused but no phone was recovered from him. Though there were 5 FIRs registered against the petitioner, he was on bail in all, except the present FIR. Petitioner, thus, deserved to be released on regular bail.
Learned State counsel has argued that the case was registered on secret information received by the police regarding involvement of co-accused Lucky and his nephew Karan in large scale heroin smuggling. The investigation revealed existence of a well organised drug syndicate running in jail involving the petitioner and other accused. Petitioner, while in jail, had been facilitating calls between co-accused and later destroyed his mobile phone. The role attributed to the petitioner in the drug syndicate was significant. There were as many as 9 criminal cases including 3 of NDPS Act against him. Considering the gravity of allegations, petitioner did not deserve the concession of bail, despite the period of custody after dismissal of the earlier bail applications.
While dismissing the second application for regular bail of the petitioner, on 07.04.2025, this Court observed as under:
‘12. While it is correct that the petitioner was not named in the FIR and no physical recovery of any contraband has been made from him, it is equally clear that the investigation has unearthed significant evidence suggesting the involvement of the petitioner in an organized drug trafficking network. The disclosure statements of co-accused, though not substantive evidence per se, gain weight when considered in conjunction with the other incriminating material which has come to light during investigation in the present case, including recoveries of huge quantity of heroin from co-accused, and the overall chain of circumstances, all of which indicates the prima facie complicity of the petitioner in the offence. The criminal antecedents of the petitioner tilt the balance against the grant of bail, especially in the light of the rigorous restrictions imposed under Section 37 of the NDPS Act.
13.The quantity of heroin recovered in the case 05 kg, is multiple times over the threshold of 'commercial quantity' under the NDPS Act. The magnitude of the offence and the apparent nexus of the petitioner with the core members of the drug cartel underscores the grave threat posed to society, particularly to the younger generation.
14.In view of the seriousness of the offence, the antecedents of the petitioner, this Court does not deem it fit to extend the concession of bail to the petitioner. Accordingly, the instant petition is hereby dismissed.’
Though, considerable period has passed after dismissal of the second petition for bail and the petitioner has a right to speedy trial, yet in matters governed by the NDPS Act, particularly involving commercial quantity, the right under Article 21 of the Constitution of India, must be exercised within the framework of Section 37 of NDPS Act and cannot be invoked solely on the ground of delay to over ride it. The constitutional right under Article 21 and the special provisions under Section 37 of NDPS Act are to be read harmoniously and not in opposition to each other. These were the observation of Hon’ble Supreme Court in SStttaaatttee ooff PPuuunnnjjjaaabbb VVVeeerrrsssuuuss SSuuukkkhhhwwwiiinnndddeeerrr SSSiiinnnggghhh @@@ GGGooorrraaa,,, 222000222666 SSSCCCCCC ooonnnllliiinnneee SSSCCC 66677711 .
In SStttaaattteee ooofff PPPuuunnnjjjaaabbb VVVeeerrrsssuuusss BBBaaalllrrraaajjj SSSiiinnnggghhh @@@ BBBiiillllllaaa,, 22000222666 IIINNNSSSCC 66111888,, as well Hon’ble Supreme Court considering an appeal against order granting bail to an accused who was confined in jail and was operating a drug trafficking network from inside jail using illegal mobile phones, refused bail in view of the twin conditions laid down in Section 37 of NDPS Act and antecedents of the accused who was involved in commission of offences of the same very nature under the NDPS Act.
In the case before us also, petitioner has been attributed prime role in a drug syndicate which was being run within the premises of jail and mere period of custody undergone after the dismissal of first bail application cannot entitle him to bail, dispensing with the mandatory requirement of Section 37 of NDPS Act. Petitioner is involved in 10 other cases, including 3 under NDPS Act and 3 under Arms Act. The period of custody after 07.04.2025, cannot be considered substantial in view of the maximum sentence provided for the offences invoked.
Dismissed.
All the pending miscellaneous applications, if any, stand disposed of.