IMPORTANT POINT
Bail – Delay in conclusion of trial is a valid ground to grant bail to accused.

JUDGMENT (ORAL)

Satyen Vaidya, J.—Petitioner is an accused in case FIR No. 14/2021, dated 27.03.2021, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Sainj, District Kullu, H.P. Petitioner is in custody since 30.03.2021.

2. Petitioner is facing trial for offences under Sections 20 and 29 of ND&PS Act in pursuance to challan filed by respondent. The allegation against petitioner is that on 27.03.2021, police party headed by HC Anupam Kumar No. 13 had laid ‘Naka ‘at place Larji. At about 4:30 am, a vehicle bearing No. HP-24B-6994 (Tata Tigor) was stopped for checking. Another Vehicle HP-24C-6968 (Pick Up) followed and stopped behind the Tata Tigor car. Two person alighted from vehicle bearing No. HP-24B-6994 and ran towards river. Vehicle H.P. 24-C-6968 (Pick Up) was occupied by its driver Vinod Kumar. On search of vehicle H.P-24C-6968 “Charas” weighing 1 Kg and 555 grams was recovered. Petitioner is alleged to be one of the occupants of vehicle No. HP-24B-6994, who has fled from the scene. It is alleged against him that contraband belonged to petitioner and other occupant of vehicle No. HP-24B-6968.

3. Petitioner has now prayed for grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. As per petitioner, he is in custody approximately since one year and ten months now and the trial has not concluded, rather, it is progressing at snails pace.

4. In its status report, respondent has submitted that prosecution witnesses have now been summoned for 17.01.2023 for examination before learned District and Sessions Judge.

5. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground that Section 37 of ND&PS Act, has application in the facts of the case and merely, on the ground of delay in conclusion of trial, petitioner cannot be released on bail.

6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

7. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?

8. It is submitted by learned counsel for the petitioner that till date prosecution witnesses have not been examined, despite the fact that petitioner is in custody since 30.03.2021. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.

9. Recently, in a number of cases, under-trials for offences involving commercial quantity of contraband under ND&PS Act have been allowed the liberty of bail by Hon’ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

10. In Mahmood Kurdeya Vs. Narcotic Control Bureau (2022) 3 RCR (Criminal) 906, Hon’ble Supreme Court has held as under:—

“6. What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced.”

11. In Nitish Adhikary @ Bapan Vs. The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, Hon’ble Supreme Court has held as under:—

“During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not h