ORDER : 1. The jurisdiction of this court has been invoked by way of filing the instant second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number VIII(IO)10NCB/JZU/2022 2. Concerned Police Station NCB Jodhpur 3. District Jodhpur 4. Offences alleged in the FIR Sections 8/15, 25 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 13.03.2023 2. Mr. Vishal Sharma, learned counsel for the petitioner vehemently and fervently contended that petitioner has unnecessarily been dragged in this case rather, his arrest is not required as he has nothing to do either with the accused or with the contraband allegedly recovered from the accused Anil Sen, who was in the car bearing registration No.RJ25 CA2711 in which allegedly 155 Kg 490 grams poppy husk came to be recovered. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. 3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 4. Heard and considered the submissions made by both the parties and have perused the material available on record. 5. It is the case of the prosecution that the petitioner was not accompanying the principal accused and he was not in the car mentioned above rather it is alleged that when the team of NCB intercepted a Car bearing registration No.RJ25 CA 2711, which was allegedly being driven by one Anil Sen and when the search and seizure process of Car No.RJ25 CA2711 was underway and the accused Anil Sen was with the officers of the NCB during that period one another Car bearing registration No.RJ19 UC5865 passed through the road. It is alleged that the another car hit the Govt. jeep and fled away from the spot. As per Shri Sharma, there is no direct connectivity between the petitioner and Anil Sen through any mode and in fact his vehicle passed through that road after a considerable interval. Shri Vishal Sharma, learned counsel vehemently urged that simply because the Govt. It is alleged that the another car hit the Govt. jeep and fled away from the spot. As per Shri Sharma, there is no direct connectivity between the petitioner and Anil Sen through any mode and in fact his vehicle passed through that road after a considerable interval. Shri Vishal Sharma, learned counsel vehemently urged that simply because the Govt. jeep hit by a car which was being driven by the petitioner cannot be a solid presumption to hold that he was having any connectivity with Anil Sen and his car. He might have fled away from the spot for the reason that accidentally his car had a small bump with the Govt. vehicle, and afraid of which he may have tried to flee from the spot. 6. I have pondered over the submissions made at the bar by the learned counsel for the petitioner and minutely gone through the record of the case. 7. The petitioner is behind the bars since 19.05.2022. It is an admitted fact situation that nothing incriminating is recovered from the petitioner and the prosecution has failed to establish a direct nexus between the petitioner and the principal accused Anil Sen who was caught by the NCB Team for having possession of contraband. The first bail application of the petitioner got dismissed when the matter was at its nascent stage but now around two and half years have elapsed and still prosecution has not produced any material on record to show direct connectivity of the petitioner either with the contraband or so also with the accused. Whether in the given facts a person can be detained in custody for two or more years only for want of evidence against him is a serious question to be adjudicated by this Court. Whether the interrogation note alone sans any material evidence and legally admissible evidence can be made basis for an indefinite incarceration is a further question which is considered by this Court and lastly, whether the circumstance mentioned above are sufficient enough to put an embargo upon this Court in granting bail to the accused in light of the provision contained under Section 37 of the NDPS Act have anxiously been taken into account vis a vis an alienable guarantee to every individual by virtue of Article 21 of the Constitution of India. 8. 8. When comes to the impediment contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below: “18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest. 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.” (Emphasis Supplied) 9. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21. 10. 10. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, around two and half years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner. 11. After making deliberation on the nature and gravity of the offence, the fetter contained under Section 37 of the NDPS Act coupled with the fundamental rights of the accused to liberty as well as the speedy trial and taking into account the quality of evidence available on record to substantiate the charge upon the petitioner, this Court feels that the concession of bail ought to be granted in the favour of the petitioner. 12. 12. Accordingly, the instant second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner, named above, shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.