IMPORTANT POINT
There is a statutory bar to the bail being granted to an accused unless his case in covered by the provisions contained in section 37 of the Narcotic Drugs and Psychotropic Substances Act, in NDPS case.

JUDGMENT

V.B. Bansal, J. - By this order I will dispose of Cr. M (M) 571191 (Anil Kumar Gandhi v. Narcotic Control Bureau & Ors.) and Cr. M (M) 370/91 (Kulwant Singh v. S.K. Wadhera, I.O. NCB) as the common question for consideration in these petitions is as to whether the petitioners are entitled to be released on bail on account of delay in the disposal of cases.

2. Anil kumar Gandhi has prayed for being released on bail in a complaint under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

Intelligence Officer, Narcotic Control Bureau, New Delhi, namely, N.P. Kaushik filed a complaint in the court of the Additional Chief Metropolitan Magistrate, New Delhi against the petitioner and others on 20th November, 1987. The case is now pending before the Additional Sessions Judge, New Delhi, after the same was committed. Petitioner was allowed interim bail for different periods vide different orders of this Court on account of the illness of his father and subsequently on account of his own illness. Sometimes the bail was extended on account of the illness of the parents of the petitioner. However, at present he is in judicial custody and the matter is pending trial.

3. Shri S.K. Wadhera filed a complaint against Kulwant Singh and others in the court of Addl. Chief Metropolitan Magistrate, New Delhi for the offences under Ss. 21,23 and 29 of the Act. Kulwant Singh was arrested on or about 16th June 1987. The case was committed to the Sessions Court for trial on 11th January 1988. The charges were framed in the complaint on 16th December 1988. Recording of the evidence of the prosecution started on 1st March 1990 and the case is still at the stage of recording of evidence.

4. Learned counsel for the petitioners has submitted that the petitioners have already been in custody for a period of about 25 months and there has not been any progress in the case. He has, thus submitted that there is a fundamental right available to the petitioners under Article 21 of the Constitution of India for speedy trial of the cases, and that on account of undue delay in concluding the trial the petitioners have a right of being released on bail forthwith. He has also submitted that Section 37 of the Act is a legislative provision which cannot override the constitutional right available to the petitioners under Article 21 of the Constitution and thus following the provisions of fundamental right of the petitioners they should be bailed out. These applications have strongly, been contested by the learned counsel for the respondents who have submitted that a writ petition is already pending in this Court in which the vires of Section 37 of the Act have been challenged. They have also submitted that this Court while dealing with the applications for bail under the previsions of the Code of Criminal Procedure and the Act cannot order for the release of the petitioners on bail and that the remedy for this purpose may be available to the petitioners in some other proceedings. A prayer has, therefore, been made that these applications may be dismissed.

5. Article 21 of the Constitution of India provides that there is a fundamental right available to a person to have speedy trial of a criminal case pending against him. Such a person facing trial cannot be deprived of this fundamental right as is clearly stated in the case of Madheshwardhari Singh and another v. State of Bihar1. In case of a violation of such a right the petitioner is entitled to be released unconditionally as is held by the Patna High Court in the case of State v. Maksudan Singh and others2. Learned counsel for the petitioners has submitted that the normal period for concluding trial of a criminal case is one year and in case the trial is not concluded the undertrial is entitled to be released on bail and reliance has been placed by him on the case of Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna3.

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