IMPORTANT POINT
Bail – Section 436-A of Cr.P.C. does not exclude offences under NDPS Act – Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21.

JUDGMENT

The applicant has preferred this application for bail under Section 439 of Code of Criminal Procedure in connection with FIR bearing CR No.II-7 of 2016 registered with Wada Police Station, District – Palghar, for offences under Sections 8(c), 22, 27A and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

2. The case of prosecution is that information was received through intelligence by ATS, Ahmadabad which was transmitted to Superintendent of Police, Palghar and pursuant to that the raid was conducted on 19th May 2016. A farm house situated at Village Gaurpur, Tal.Wada. District Palghar was raided. There was seizure of 560 kgs. 148 grams of Methaqualone, psychotropic substance. The statements of arrested accused were recorded. The investigation was conducted. The charge sheet was filed.

3. The applicant had preferred Criminal Bail Application No.975 of 2018 seeking bail before this Court. The said application was rejected by order dated 4th February 2019. Thereafter another application for bail was moved before this Court viz Bail Application No.1694 of 2019. The said application was rejected vide order dated 14th October 2019. It was urged that applicant is in custody from 25th May 2016. While disposing the said application it was observed that considering the fact that applicant is in custody as urged by applicant, directions can be issued to the Trial Court to expeditiously conclude the trial. Trial was expedited. The Trial Court was directed to conclude the trial within a period of nine months. The State was directed to take immediate steps to appoint Special Public Prosecutor for conducting trial. The prosecution and the defense were directed to co-operate with the Trial Court in concluding the trial expeditiously. It was also directed that the accused be produced before the Trial Court regularly. However, in spite of passage of time of two years, trial has not commenced. Resultantly applicant has continued to be in custody for five and half years.

4. This application for bail is preferred primarily on the ground that applicant is in custody for a period of more than five years. In spite of directions to conclude trial expeditiously, there is no progress in the trial.

5. Learned advocate for the applicant submitted as follows:—

(i) The applicant is arrested on 25th May 2016 and since then he is in custody. The trial was expedited with direction to conclude the same within a period of nine months. However, trial has not commenced. Even charge has not been framed;

(ii) The period of nine months is over in July-2020 and yet the trial has not yet commenced. Lock down was declared due to Covid-19 from 23rd March 2020 and even prior to that the Trial Court had five months from October-2019 to proceed with trial;

(iii) The offences punishable under Sections 22 and 27A of the NDPS Act are punishable with imprisonment for not less than ten years but which may be extended up to twenty years, which would mean that the minimum punishment for the offence is ten years imprisonment. The applicant was arrested on 25th May 2016 and he had completed five years of imprisonment in May-2021. Thus, he has already completed half the period of minimum sentence that can be awarded to him before commencement of trial. Further custody of the applicant is not justifiable as the applicant cannot be incarcerated in jail for an indefinite period taking into consideration the mandate of Article 21 of Constitution of India, the applicant is entitled for bail;

(iv) On perusal of order dated 14th October 2019 it can be seen that the report was called from Trial Court regarding status of trial, which was submitted before this Court on 23rd September 2019. In the said report it was stated that there was no co-operation from the accused for framing charge, however, on perusal of roznama from 15th November 2016 to 23rd July 2020, it can be seen that no such observation has ever been recorded by the Trial Court in the ro