ORDER : 1. This is the second bail application under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 02/2020, Police Station NCB Jodhpur, District Jodhpur for the offence under Sections 8/18, 25 & 29 of NDPS Act. 2. The first bail application of the petitioner was dismissed by this Court vide order dated 07.03.2022 as not pressed. 3. Learned counsel for the petitioner submits that the petitioner is innocent and he has falsely been implicated in this case. Counsel submits that the trial is pending for last more than four years and till date, only five prosecution witnesses have been examined out of total 12 witnesses. Counsel submits that some witnesses did not turn up for their evidence despite issuance of summon. 4. In support of his contentions, learned counsel placed reliance on the recent order dated 13.07.2023 passed by Hon’ble the Supreme Court in the case of Rabi Prakash vs. State of Odisha in Special Leave to Appeal (Crl.) No. 4169/2023, wherein Hon’ble the Supreme Court held as under: “3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time. 4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b) (ii) of the NDPS Act.” 5. Hon’ble the Supreme Court in the case of Union of India vs. K.A. Najeeb, (2021) 3 SCC 713 , while dealing with the cases where fetters are placed on Court’s power to grant bail and the trial has not been completed within a reasonable time, observed as under: “17. Hon’ble the Supreme Court in the case of Union of India vs. K.A. Najeeb, (2021) 3 SCC 713 , while dealing with the cases where fetters are placed on Court’s power to grant bail and the trial has not been completed within a reasonable time, observed as under: “17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part-III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.” 6. A coordinate Bench of this Court in the case of Umesh Vyas vs. State of Rajasthan (S.B. Criminal Misc. II Bail Application No. 14958/2022), vide order dated 17.03.2023, also observed as follows: “The Hon’ble Supreme Court in the cases of Abdul Majeed Lone vs. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl.) No. 3961/2022, Amit Singh Moni vs. State of Himachal Pradesh, Criminal Appeal No. 668/2020, Tapan Das vs. Union of India, Special Leave to Appeal (Criminal) No. 5617/2021, Kulwant Singh vs. State of Punjab, Special Leave to Appeal (Criminal) No. 5187/2019, Ghanshyam Sharma vs. State of Rajasthan, Special Leave to Appeal (Criminal) No. 5397/2019, Nadeem vs. State of U.P. Special Leave to Appeal (Criminal) No. 1524/2022 and Mukesh vs. State of Rajasthan, Special Leave to Appeal (Criminal) No. 4089/2021 has granted bail to the accused persons, against whom the allegations are of transporting or possessing narcotic contraband above commercial quantity, on the ground of custody period and taking into consideration the fact that the trial against the said accused persons will take time in completion. The Hon’ble Supreme Court has ordered for release of the accused persons who were in custody from two years to four years. Learned Public Prosecutor has opposed the bail application. Having regard to the totality of the facts and circumstances of the case, I deem it appropriate to allow this fifth bail application solely on the ground of custody period of the accused petitioner and keeping in view the fact that the trial against him has not been completed till date. Accordingly, without expressing any opinion on the merits of the case, this third bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Umesh Vyas S/o Shri Ganeshlal Ji shall be released on bail in connection with FIR No. 15/2019 of Police Station Charbhuja, District Rajsamand provided he executes a personal bond in a sum of Rs. 50,000/- with two sound and solvent sureties of Rs. 25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.” 7. Learned counsel for the petitioner has further placed reliance on the decision dated 28.03.2023 rendered by Hon’ble the Supreme Court in Mohd. Muslim @ Hussain vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No. 915 of 2023, wherein it is observed by the Hon’ble Supreme Court that delay in trial can also be considered for releasing accused person on bail despite the restrictions imposed under Section 37 of the NDPS Act and in the light of the judgment passed by the Hon’ble Supreme Court in Mohd. Muslim @ Hussain’s case (supra), the petitioner is entitled to be enlarged on bail. 8. The petitioner is in the judicial custody since 08.01.2020 i.e. for more than four years and the trial of the case will take sufficiently long time. Therefore, the benefit of bail may be granted to the accused-petitioner. 9. Learned Public Prosecutor has submitted that the recovered contraband is commercial quantity, therefore, benefit of bail may not be granted to the petitioner. 10. Therefore, the benefit of bail may be granted to the accused-petitioner. 9. Learned Public Prosecutor has submitted that the recovered contraband is commercial quantity, therefore, benefit of bail may not be granted to the petitioner. 10. Progress report of the case was called for from the trial court and in compliance of the said order, learned Additional District and Session Judge, Jalore sent the progress report dated 12.01.2024 stating therein that for one or the other reason, the witness did not appear for his evidence and efforts will be made to complete the trial as early as possible. 11. I have considered the arguments advanced before me and gone through the progress report as well as material available on record. 12. It is not disputed that the accused petitioner has so far suffered incarceration of more than four years and trial is still going on. So far as Section 37 of the NDPS Act is concerned, the embargo put on grant of bail under Section 37 of the Act is not a total bar. In the provision, certain exceptions exist within Section 37 itself and for those exceptions, bail can be granted. In the present case, the petitioner has so far suffered incarceration of more than 4 years, therefore, looking to the prolonged custody of the petitioner, it would not be appropriate to invoke the rigor envisaged under Section 37 of NDPS Act. 13. Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Rawta Ram S/o Pappa Ram shall be enlarged on bail in FIR No. 02/2020, Police Station NCB Jodhpur, District Jodhpur provided he furnishes a personal bond in the sum of Rs. 2,00,000/- with two sureties of Rs. 1,00,000/- 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.