NADIR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this successive regular bail application under Sec. 439 of the Code of Criminal Procedure, the applicant has prayed to release him on regular bail during the pendency of trial, mainly on the ground that though he was arrested on 28/07/2019, learned Sessions Judge has not framed charges against any of the accused and the trial has not commenced.

(2.) When the matter was listed for hearing before this Court on 07/01/2022, an order was passed directing the learned Special (NDPS) Judge, Bhuj, Dist: Kachchh, who is in-charge of the case on hand, to furnish the status of the case. Accordingly, a report has been received from 4th Additional District & Sessions Judge, Special Judge (NDPS), Bhuj, by which, learned Sessions Judge has stated that after persistent reminders to the office of Public Prosecutor, D- list (list of documents) was produced on 21/12/2021 but on account of non-production of accused from jail due to stopping of police Japta, charge against accused could not be framed on 21/12/2021 and thus, the matter was kept for framing charge on 04/01/2022. Thereafter, since one of the accused was released on temporary bail, he did not remain present on that day and therefore, the matter was kept on 17/01/2022 for framing of charge and summoning the witness. Report further discloses that due to circular issued by High Court of Gujarat on 07/01/2022 as well as circular dtd. 08/01/2022 issued by learned Principal District Judge, Bhuj, physical functioning of the court is stopped and therefore, police could not bring the accused before the court and therefore, the matter is kept on 31/01/2022.

(3.) Mr.M.A.Saiyed, learned advocate with Mr.A.A.Zabuawala, learned advocate appearing for the applicant would submit that though the applicant is behind bar since 28/07/2019 i.e. last more than two years, even charge has not been framed. He would submit that though there is no evidence against the applicant that he is involved in the offence punishable under Sec. 8(C) , 21(C) and 29 of The Narcotic Drugs and Psychotropic Substance Act,1985 (hereinafter referred to as " NDPS Act "). He would submit that though there is allegation that he is involved in the aforesaid offences, the alleged contraband recovered from him is of a commercial quantity but an accused can be released on bail during the pendency of the trial since trial has not commenced. In support of his submission, he has relied upon the decision rendered by Hon'ble Apex Court on 07/12/2021 in Criminal Appeal No.1570 of 2021 [SLP (Cri.) No.7085 of 2021], he would submit that aspect of applicability of sec. 37 of The Narcotic Drugs and Psychotropic Substance Act,1985, is also dealt with by Hon'ble Apex Court while releasing the accused on bail, which was involving commercial quantity of Narcotic Drugs and therefore, the case may be considered.