Punjab and Haryana High Court: In a bail application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for offences under Sections 22, 61, and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), the Single Judge Bench of Sumeet Goyal, J., allowed the application holding that long inordinate custody of the accused as an undertrial, without him being responsible for procrastination of the trial, entitled him to the grant of regular bail in the facts of the present case. The Court also elaborated upon the right to speedy trial and held that the grant of bail in a case pertaining to commercial quantity, on the ground of undue delay in trial, could not be said to be fettered by Section 37 of the NDPS Act.
Background
The accused was arrested for possession of a commercial quantity of contraband under the NDPS Act. Subsequently, an FIR was filed against him under Sections 22, 61 and 85 of the NDPS Act. As per the custody certificate, he had been incarcerated for approximately three years. Thus, the present application was filed.
Analysis and Decision
On the vital aspect of speedy trial, the Court placed reliance on the landmark case of Hussainara Khatoon (I) v. Home Secy., State of Bihar (1980) 1 SCC 81, wherein the Supreme Court held that the right to speedy trial of offenders facing criminal charges was implicit in the broad sweep and content of Article 21 of the Constitution. It was also held that a valid procedure under Article 21 contained a procedure that was reasonable, fair, and just. Similarly, the Court relied on the cases Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225, and Javed Gulam Nabi Shaikh v. State of Maharashtra (2024) 9 SCC 813.
The Court also relied on several cases concerning the possession of commercial quantity of contraband under the NDPS Act wherein bail was granted, such as Mohd. Muslim v. State (NCT of Delhi) 2023 SCC OnLine SC 352, Chitta Biswas v. State of W.B. 2020 SCC OnLine SC 1536, Nitish Adhikary v. State of W.B. 2022 SCC OnLine SC 2068, etc.
The Court stated that the right to a speedy and expeditious trial was not only a vital safeguard to prevent undue and oppressive incarceration, to mitigate anxiety and concern accompanying the accusation as well as to curtail any impairment in the ability of an accused to defend himself, but there was an overarching societal interest paving way for a speedy trial.
The Court further stated that the concept of speedy trial was amalgamated into Article 21 as an essential part of the fundamental right to life and liberty, guaranteed and preserved under the Constitution. The right to speedy trial began with the restraint imposed at the time of arrest and consequent incarceration which continued at all the stages of trial, so that any possible prejudice that might result due to impermissible and avoidable delay could be averted. The Court added that the speedy trial, early hearing, and quick disposal were the sine qua non of criminal jurisprudence. The delays of the criminal mechanism were not an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of time.
Regarding the aspect of bail in a case involving a commercial quantity of contraband, the Court stated that the rigours of Section 37 of the NDPS Act had to be kept in mind, which mandated that the Courts can grant bail to an accused only after hearing the public prosecutor and after being satisfied regarding the twin conditions, i.e., reasonable grounds for believing that the accused was not guilty of the offence and he was unlikely to commit any offence while on bail. The Court further stated that the stringent rigours of Section 37 had to be meticulously scrutinized against the backdrop of the accused’s fundamental right to a speedy trial.
The Court added that “The right to life and personal liberty cannot be rendered nugatory by unwarranted delays in the judicial process, particularly where such delay(s) is neither attributable to the accused nor justified by the prosecution with cogent reasons. An individual cannot be kept behind bars for an inordinate period of time by taking refuge in the rigours of Section 37.”
The Court stated that while dealing with a bail petition governed by Section 37 of the NDPS Act, the Court must strike a judicious balance between the legislative intent to curb the menace of drugs and the sacrosanct right of the accused to a fair and expeditious trial. “Prolonged incarceration, without justifiable cause, risks transforming pre-trial detention into punitive imprisonment, an outcome antithetical to the principle of justice and equality.”
Thus, the Court said that grant of bail in a case pertaining to commercial quantity, on the ground of undue delay in trial, could not be said to be fettered by Section 37 of the NDPS Act.
In the matter at hand, the Court noted that the the trial was procrastinated, with no conclusion in the near future, and the delay in culmination thereof could not be attributed to the accused. The Court noted that according to the zimni orders, summons and bailable warrants had repeatedly been issued against the police officials who did not get their testimonies recorded as prosecution witnesses. The Court also stated that nothing indicated the likelihood of the accused absconding from the process of justice or interfering with the remaining prosecution evidence.
Thus, the Court held that long inordinate custody of the accused as an undertrial, without him being responsible for the procrastination of the trial, entitled him to the grant of regular bail in the facts of the present case. Furthermore, detention of the accused as an undertrial was not warranted in the present case.
Stating this, the Court allowed the application and directed release of the accused on regular bail subject to him furnishing bail/surety bonds to the satisfaction of the Trial Court.
The Court further imposed the following bail conditions on the accused:
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The accused shall not misuse the liberty granted.
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He shall not tamper with any evidence, oral or documentary, during the trial.
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He shall not absent himself on any date before the trial.
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He shall not commit any offence while on bail.
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He shall deposit his passport, if any, with the Trial Court.
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He shall give his cell phone number to the Investigating Officer/SHO of the Police Station concerned and shall not change it without prior permission of the Trial Court.
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He shall not, in any manner, try to delay the trial.
Lastly, the Court clarified that nothing said herein shall be construed as an expression of opinion on the merits of the case.
[Kulwinder v. State of Punjab, CRM-M No. 64074 of 2024, decided on 10-01-2025]
Advocates who appeared in this case:
For the applicant: Viren Sibal
For the respondent: Avneet, AAG Punjab
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