IMPORTANT POINT
Bail – Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of NDPs Act in perpetuity.

JUDGMENT

Satyen Vaidya, J.—Petitioner is an accused in case FIR No. 16/2021, dated 24.02.2021, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Swarghat, District Bilaspur, H.P. Petitioner is in custody since 24.02.2021.

2. Petitioner is facing trial for offences under Sections 20 and 29 of ND&PS Act in pursuance to challan filed by respondent. The case of the prosecution is that on 24.02.2021, police intercepted Car No. HP49-2697, at place Baner within the jurisdiction of Police Station Swarghat, District Bilaspur, H.P. Accused Tek Ram was on the wheel and Bobby Sharma was an occupant of front passenger seat. On search of the Car, 1.790 Kgs Charas was recovered from the vehicle. The case was registered and accused Tek Ram alongwith Bobby Sharma were arrested. It was discovered that Tek Chand and co-accused Bobby Sharma were transporting the contraband at the instance of Hitesh and the petitioner. It was also discovered that petitioner alongwith Hitesh were waiting on the State border of Himachal Pradesh beyond Swarghat in District Bilaspur, H.P. Police acted with promptness and arrested co-accused Hitesh, who were found waiting near State border in a vehicle No. DL8CNA-7974.

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 for more than two years and the trial has not concluded, rather, it is progressing at snail’s pace.

4. As per petitioner, out of twenty-five cited witnesses, prosecution has examined only four witnesses till date and four witnesses have been given up.

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 provision 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. As is suggested by the contents of status report, recording of prosecution evidence is still in progress despite the fact that petitioner is in custody since 24.02.2021. 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 pe