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SUPREME COURT OF INDIA
S. RAVINDRA BHAT, DIPANKAR DATTA, JJ.
Mohd Muslim @ Hussain – Appellants
VERSUS
State (NCT of Delhi) – Respondents
Criminal Appeal No(s). 943 OF 2023 @ Special Leave Petition (Crl.) Nos. 915 of 2023
Decided On : 28-03-2023
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 read with Sections 20, 25 and 29 – Criminal Procedure Code, 1973 – Section s 436-A and 439 read with Section 482 – Bail – When provisions of law curtail right of accused to secure bail, and correspondingly fetter judicial discretion (Section 37 of NDPS Act, in present case), Supreme Court has upheld them for conflating two competing values, i.e., right of accused to enjoy freedom, based on presumption of innocence and societal interest – When stringent provisions are enacted, curtailing provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly – Appellant has been in custody for over 7 years and 4 months – Progress of trial has been at a snail’s pace – 30 witnesses have been examined, whereas 34 more have to be examined – Conditions which courts have to be cognizant of are that there are reasonable grounds for believing that accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail – Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of NDPS Act, given imperative of Section 436A of Cr.P.C., which is applicable to offences under NDPS Act too – Jails are overcrowded and their living conditions appalling – Courts have to be sensitive to these aspects because in event of an acquittal, loss to accused is irreparable – Bail granted. (Paras 13, 17, 18, 20, 21, 23 and 24)
Facts of the case:
Appellant complains that his application for bail ought not to have been rejected by High Court, in the present case, considering that he has suffered incarceration for over 7 years and the criminal trial has hardly reached the half-way mark. appellant is accused of committing offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. His application under Section 439 read with Section 482 of the Criminal Procedure Code, seeking grant of regular bail, before Delhi High Court, was denied by the impugned judgment4. Some other facts important to the decision in this case, are that at the time of his arrest, appellant was 23 years. He was not found in possession of narcotic drug; other co-accused were.
Findings of Court:
Standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether accused’s guilt may be proved. The judgments of this court have emphasized that the satisfaction which courts are expected to record, i.e., that accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of materials collected during investigation.
Result : Appeal allowed.
Key Points: - Grant of bail on ground of undue delay in trial cannot be restricted by Section 37 of the NDPS Act, given the imperative of Section 436-A of CrPC, which applies to offences under NDPS Act too (!) (!) . - Bail can be granted where the court is reasonably satisfied on a prima facie reading of the material that the accused is not guilty and is not likely to commit any offence while on bail, considering the stringent provisions and need for speedy trial (!) (!) . - The accused had been in custody for over 7 years with trial progressing slowly; the court emphasized sensitivity to overcrowded jail conditions and irreparable loss in event of acquittal, leading to allowance of bail (!) (!) (!) .
JUDGMENT :
S. RAVINDRA BHAT, J.
1. Special leave granted. With consent of counsel for parties, the appeal was heard finally.
2. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar, [1979] 3 SCR 1276: (1980) 1 SCC 81 this court had declared that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”. Remarking that a valid procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just” it was held that:
“Now obviously procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21.”
3. These observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar, (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak, [1991] Supp. 3 SCR 325: (1992) 1 SCC 225; in the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:
“The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial.”
4. These issues have pivotal meaning to the facts of this case. The appellant complains that his application for bail ought not to have been rejected by the High Court, in the present case, considering that he has suffered incarceration for over 7 years and the criminal trial has hardly reached the half-way mark. The appellant is accused of committing offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘NDPS Act’). His application under Section 439 read with Section 482 of the Criminal Procedure Code (hereafter ‘CrPC’), seeking grant of regular bail, before the Delhi High Court, was denied by the impugned judgment4[Order dated 08.09.2022 in Bail Application No. 2675/2022]. Some other facts important to the decision in this case, are that at the time of his arrest, the appellant was 23 years. He was not found in possession of the narcotic drug; other co-accused were.
5. The prosecution alleges that on 28.09.2015, based on secret information received by the police, a raid was conducted, leading to arrest of four accused persons-Nitesh Ekka, Sanjay Chauhan, Sharif Khan, and Virender Shakiyar/Sakyabar @ Deepak, who were alleged to be in possession of 180 kilograms of ganja. During investigation, the accused Nitesh Ekka was taken to Chhattisgarh for identification of co-accused persons. At his instance, the present appellant Mohd. Muslim was arrested on the intervening night of 03/04.10.2015. Pursuant to further inve
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