ORDER : (Farjand Ali, J.) 1. The jurisdiction of this Court has been invoked by way of filing the instant bail application under Section 439 Cr.P.C. 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 313/2022 2. Concerned Police Station Anoopgarh 3. District Ganganagar 4. Offences alleged in the FIR Section 8/15, 25 and 29 of the NDPS Act 5. Offences added, if any -- 6. Date of passing of impugned order 30.07.2024 2. In nutshell the facts of the case are that on 18.05.2022 Shri Jagdish Prasad, Sub Inspector/Acting SHO, Police Station Anoopgarh, while on patrolling along with his team near Patroda, received information through an informer that Satpal alias Manu S/o Atmaram Bishnoi had brought a consignment of poppy husk to his village in Rohi 4 KC. Acting upon the said information, when Satpal alias Manu reached towards the village at around 05:22 PM, upon seeing the police team, he fled towards the fields and was identified by Sub Inspector Anoop Singh and Constable Ghanshyam who ran after him but he managed escape good due to considerable distance between them. 3. After the unsuccessful pursuit of the fleeing suspect two persons were spotted holding plastic sacks in their hands near a pile of stubble in Nohra. The police officers instructed them to stand still as they were and questioned about their identity. They disclosed themselves as Govind Bahadur S/o Sundar and Bhagirath S/o Chananram. They confirmed that the person who fled was Satpal alias Manu Bishnoi, the owner of the Dhani. When they were questioned regarding the packets in their possession, they failed to furnish a satisfactory explanation. After taking action as per rules, the packets in their possession were taken into police custody and additional packets were recovered from buried place under stubble in the raw shed. In total, 12 fully stitched packets and one partially filled packet were recovered. Upon opening and inspection, all packets were found containing poppy husk. The total weight of the seized contraband comes to 02 quintal 50 kg 200 gm. 4. In total, 12 fully stitched packets and one partially filled packet were recovered. Upon opening and inspection, all packets were found containing poppy husk. The total weight of the seized contraband comes to 02 quintal 50 kg 200 gm. 4. It is evident that in the case at hand, the main accused Satpal is an accused of keeping a total of 02 quintals 50 kg 200 grams of poppy husk at his residential hamlet without a valid license and the said illegal narcotic substance has been seized by the police team in the presence of co-accused Govind Prasad and the present petitioner Bhagirath. The petitioner Bhagirath has been arrested in this case under sections 8/15, 25 and 29 of the NDPS Act. After search and seizure, samples were collected and sent to the FSL for its chemical examination. 5. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. If the seizure of the contraband is not made as per the legal provision then the embargo contained under Section 37 of the NDPS Act is not applicable. 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. 6. Contrary to the submissions of learned counsel for the petitioner, learned Additional Government Advocate opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 7. I have considered the submissions made by both the parties and have perused the material available on record. 8. Prima facie, it appears that the petitioner is neither the owner of the place from where the recovery was made, nor have any dominion over the recovered contraband rather, it seems that he was merely performing the role of a labourer. The petitioner is aged about 66 years and he was arrested on 19.05.2022 and since then he is in judicial custody. Two and half years have been elapsed. Thus, this Court feel persuaded to hear the bail application on merits. 9. The petitioner is aged about 66 years and he was arrested on 19.05.2022 and since then he is in judicial custody. Two and half years have been elapsed. Thus, this Court feel persuaded to hear the bail application on merits. 9. For the principal accused Satpal, who is in custody and said to have ownership of the place from where the recovery was made, it is argued that there is a blatant violation of Section 52 A of the NDPS Act; the Standing Order No.1/1988 issued by the Central Government as well as the non-compliance of the NDPS Rules regarding search, seizure and sample. The prolonged incarceration of the petitioner is the prime argument. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a fundamental right of speedy trial to him cannot be permitted to be flouted. When there comes an issue between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. If the trial is prologned by the prosecution for one or the other reason; the personal liberty of an individual can not be encroached upon by keeping him behind the bars for an indefinite period. 10. There is a force in the defence plea that neither mandatory provisions have been complied with nor any sample was taken in accordance with the mandate contained under Section 52A of the NDPS Act. It is further observed that pending trial, an accused cannot be kept behind the bars for an unreasonable period. 11. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotation of the phrase 'reasonable period' be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclude within a session, that is, one year. Even if an elastic interpretation of the expression 'reasonable period' is taken on the pretext of certain unavoidable circumstances, then it can only be doubled and even in that situation, trial has to be completed within two years while keeping an accused in custody. Even if an elastic interpretation of the expression 'reasonable period' is taken on the pretext of certain unavoidable circumstances, then it can only be doubled and even in that situation, trial has to be completed within two years while keeping an accused in custody. Suffice it would to say that for the purpose of determination as to whether the accused is guilty or not, only a reasonable period can be awarded to the prosecutor if the accused is behind the bars. The cases which are classified as session case are purposefully directed to be heard by senior officer of District Judge Cadre looking to his experience and rank/grade/post. In criminal jurisprudence prevalent in India, there is a presumption of innocence working in favour of the accused until he is proven guilty in the trial. The trial is conducted for the purpose of affording an opportunity to the prosecutor to prove the charges and only for the purpose of proving guilt or adducing evidence on record, an unreasonable period of time cannot be granted as the same infringes the fundamental rights of an accused which are otherwise guaranteed by the Constitution of India. While entertaining a bail plea, the court of law is required to take into account the above-mentioned aspect of the matter as well beside the gravity of offence and quantum of sentence. 12. Moving on to the impediments 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) Vs. 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. 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. 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. 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) 13. 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. 14. 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 and the fact that there are total 20 witnesses, out of which three has been examined till now and two and half years have been elapsed. Keeping an accused behind the bars for more than two months 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. Keeping an accused behind the bars for more than two months 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. 15. Accordingly, the instant 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.