Judicial Analysis Court Copy Headnote Facts Arguments Court observation

KARNATAKA HIGH COURT
M.G. Uma, J.
Emmanuel Michael – Petitioner
versus
Union of India – Respondent
Criminal Petition No.1469 of 2023
Decided on 21.4.2023

Advocates:
Counsel for the Parties:
For the Petitioner:Sri. Hashmath Pasha, Senior Advocate for Sri. Mahammadali, HP-Unqiue & Co.
For the Respondent: Sri. Madhukar Deshpande, Senior CGSC

IMPORTANT POINT
Bail – When Courts recognize and respect individual right to life and liberty as guaranteed under Article 21 of Constitution of India, it is duty of Court to recognize and respect such rights of citizens as a whole – Societal interest will always be paramount when compared to individual right of a person.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Criminal Procedure Code, 1973 – Section 439 – Constitution of India – Article 21 – Bail petition – Case registered for offences punishable under Section 8(c) read with Sections 21(c), 22(c), 23(c), 27, 27A, 28, 29 and 32B(a)(d) of NDPS Act, 1985 – When sufficient materials are placed before Court which prima facie substantiates contention of prosecution at initial stage of considering bail application, no reason to accept contention of petitioner, that there is inordinate delay in concluding trial and it is a ground to enlarge accused on bail without reference to bar under Section 37 of NDPS Act – Menace of drug may enter our house unknowingly, but its effect will be unimaginable – When individual right of accused guaranteed under Article 21 of Constitution of India is considered in light of interest of society as a whole, which is to be protected by unscrupulous drug peddlers, balance will tilt in favour of society as a whole rather in favour of accused – Societal interest is always paramount when compared to individual right of accused – Bail Petition dismissed. (Paras 21 and 24)
Result: Petition dismissed.

JUDGMENT

The petitioner-accused No.2 is before this Court seeking grant of bail under Section 439 of Cr.P.C. in NCB Crime No.48/1/20/2020/BZU on the file of respondent-NCB, Bengaluru, pending in Spl.C.C.No.768 of 2021 on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special Court for NDPS Cases, Bengaluru, registered for the offences punishable under Section 8(c) read with Sections 21(c), 22(c), 23(c), 27, 27A, 28, 29 and 32B(a)(d) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

2. Heard Sri Hashmath Pasha, learned senior advocate for Sri Mahammadali, learned counsel for the petitioner and Sri Madhukar Deshpande, learned senior Central Government Standing Counsel for the respondent - State. Perused the materials on record.

3. Learned senior advocate for the petitioner submitted that the petitioner is arrayed as accused No.2. He is innocent and has not committed any offences as alleged. He has been falsely implicated in the matter without any basis. He was apprehended on 23.12.2020 and since then he is in judicial custody. The petitioner had filed similar petition seeking grant of bail in Criminal Petition No.3406 of 2021 and the same came to be dismissed vide order dated 08.10.2021. The petitioner had filed Writ Petition No.16663 of 2022 (GMRES) before this Court under Articles 226 and 227 of the Constitution of India seeking direction to the Trial Court for speedy trial of SPl.C.C.No.768 of 2021. The said writ petition was allowed by the co-ordinate Bench of this Court vide order dated 07.11.2022, directing the Trial Court to dispose of the special case within a period of three months from the date of receipt of copy of the order. The said period would expire on 06.02.2023. However, learned senior advocate would contend that the Trial Court sought for extension of period for disposal of the case and considering the prayer, the time was further extended by three months. But the trial before the Trial Court has not yet been completed. Even though, PWs.1 to 4 were examined before the Trial Court, only PW2 was tendered for cross examination. Other witnesses are not being tendered to enable the counsel to cross examine them. Still there are four more witnesses to be examined on behalf of the prosecution. Under such circumstances, the right of the accused for life and liberty guaranteed under Article 21 of the Constitution of India is being violated. The direction passed by the co-ordinate Bench of this Court in the writ petition is also violated. The accused is in judicial custody since about 28 months. There is no possibility of completion of trial in near future. Under such circumstances, the petitioner is entitled to be enlarged on bail.

4. Learned senior advocate further contended that the Hon’ble Apex Court in its recent decision rendered on 28.03.2023 in Mohd. Muslim @ Hussain vs. State (NCB of Delhi), 2023 Live Law (SC) 260 categorically held that the twin conditions mentioned under Section 37 of NDPS Act cannot have a general application to deny bail once the case is registered for commission of such offence. Finding the accused not guilty and that he would not commit any offence while on bail, at the initial stage when there are no materials available on record would amount to punitive detention. The Hon’ble Apex Court also held that grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of NDPS Act, given the imperative of section 436A which is applicable to the offences under NDPS Act too. By making such observations, the Hon’ble Apex Court granted bail in favour of the accused in similar offence. Therefore, learned senior advocate would contend that the approach of the Hon’ble Apex Court in considering Section 37 of NDPS Act and the twin conditions mentioned therein has drastically changed. Therefore, the petitioner in the present case against whom there is absolutely no material to invoke any of the provisio