Bail Can Be Granted Notwithstanding Rigors Of Section 37 NDPS Act If Trial Is Inordinately Delayed For No Fault Of Accused: J&K&L High Court
The Jammu and Kashmir and Ladakh High Court held that if the trial is inordinately delayed without any act or omission on the part of the accused, he/she may claim under Article 21 of the Constitution notwithstanding the rigors of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court held thus while considering a bail application filed under Section 438 of the Criminal Procedure Code (CrPC) for grant of bail relating to the offence under Sections 8 and 15 of the NDPS Act.
A Single Bench of Justice Sanjeev Kumar observed, “I am, however, in agreement with the learned counsel for the petitioner that in case where the trial is inordinately delayed without any act or omission on the part of the accused, the accused may claim bail on the strength of his fundamental right of speedy trial guaranteed under Article 21 of the Constitution, the rigors of Section 37 of the NDPS Act, notwithstanding. This issue has been considered by Hon‟ble the Supreme Court on many occasions and it has been authoritatively held that with a view to save the constitutionality of Section 37 of the NDPS Act, it is necessary to read Section 37 of the NDPS Act subject to the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India. Para 19 and 20 of the judgment rendered by Hon‟ble the Supreme Court in the case of Mohammad Muslim @ Hussain v. State (NCT of Delhi), reported as 2023 SCC Online (SC) 352”
The Bench said that the prosecution has already examined half of its witnesses and, therefore, it cannot be said, by any stretch of reasoning, that the trial in the case is being inordinately delayed.
Advocate Manzoor Ahmad Ganai appeared for the petitioner while Government Advocate Ilyas Nazir Laway appeared for the respondent.
Brief Facts -
In 2021, a Naka party headed by a Sub Inspector, while performing the duty at Doonipora crossing at National Highway Sangam, stopped a Car which was being driven by the petitioner i.e., the accused. During search, Poppy Straw weighing 70 Kilograms was recovered from the vehicle and the seized contraband was seized and sealed in front of the Executive Magistrate. The Trial Court directed the prosecution to commence its evidence and the accused being arrested, moved an application before the Trial Court for grant of bail on the ground that the trial of the case was inordinately delayed by the prosecution. The bail application was contested by submitting that the accused was involved in heinous and non-bailable offence under the NDPS Act which carries a very stringent punishment exceeding up to 20 years besides fine.
The prosecution further submitted that the quantity of the contraband recovered from the petitioner is a commercial quantity, and, therefore, the bar under Section 37 of the NDPS Act is attracted. The Trial Court considered the rival contentions and the material on record and having regard to the fact that the petitioner was prima facie involved in the commission of offences for trafficking commercial quantity of the Poppy straw, as such, having regard to the rigors of Section 37 of the NDPS Act, dismissed the bail application. Hence, the accused approached the High Court.
The High Court in view of the above facts noted, “Viewed from any angle, I am of the considered opinion that rigors of Section 37 of the NDPS Act are fully attracted and the petitioner cannot be held entitled to bail at this stage when prima facie material indicating the commission of offence by the petitioner exists on record. The trial Court has already completed the trial half way and is likely to complete the rest in some reasonable time. It is true that after filing of this application the prosecution has not examined any more witness.”
The Court further said that the right of speedy trial invoked by the counsel for the petitioner cannot be invoked because the challan appears to have been presented on December 14, 2021 and only two years have gone since the trial commenced.
“In view of the clear enunciation of law on the point, there is not an iota of doubt that prolonged incarceration without bail violates the right of the accused to speedy trial which is implicit under Article 21 of the Constitution of India. In such situation where the Court is of the opinion that the trial in a case has been prolonged beyond reasonable limits, without any reason or justification, it may grant bail to the accused on the strength of Article 21 of the Constitution of India, the rigors of Section 37 notwithstanding”, also observed the Court.
Accordingly, the High Court dismissed the application and directed the Trial Court to conclude the trial by taking all possible measures within one year.
Cause Title- Bashir Ahmad Bhat v. Union Territory of Jammu and Kashmir
