Undertrial prisoners who have suffered prolonged imprisonment may be entitled to bail if their fundamental rights under article 21 of the Constitution are violated due to delay in trial, despite the provisions of the NDPS act and the Criminal Procedure Code.

JUDGMENT

Bibhas Ranjan De, J. - This is an application for bail under Section 439 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C' ), involving an offence under Section 21(c)/25/29 of the Narcotic Drugs and Psychotropic Substances act, 1985 (for short 'NDPS act' ) i.e involving possession of contraband articles (Phensedyle cough syrup containing codeine phosphate) of commercial quantity. This case was put into motion by a written complain submitted by one ashim Mandal S.I of Police for initiating Dankuni Police Station case no. 86/2017 dated 22.02.2017 under Section 21(c)/25/29 of the NDPS act. The instant application was filed only on the ground that petitioner is in custody for more than five years without trial in a NDPS case and thereby already served more than half minimum punishment of the relevant sections.

2. Mr. Sudip Ghosh Chowdhury, Ld. advocate appearing on behalf of the petitioner harped on the string of period of custody of the petitioner for more than five years and thereby right to bail has accrued in favour of the petitioner according to specific direction of the Hon'ble Court. Mr. Ghoshrefrained himself from going into the merit of the case and in support of his contention he relies on Supreme Court Legal aid Committee Representing Undertrial Prisoners appellants Vs. Union of India (UOI) and Ors 1994 6 SCC 731, Sanawar ali Vs. Union of India C.R.M 9314 of 2020, Ramesh Mahato &Ors Vs. State CRM 4139 of 2021 and Shital Biswas Vs. Narcotics Control Bureau C.R.M 5066 of 2021.

3. While opposing instant application under Section 439 Cr.P.C, Mr. Sanjay Bardhan, Ld. advocate appearing on behalf of the State as vehemently submitted that the offence alleged in the case involves a commercial quantity of contraband articles. That apart, it is also submitted that the petitioner is to satisfy that the reason of delay solely attributed to prosecution.

4. In Supreme Court Legal aid Case (supra) Hon'ble apex Court was concerned with delayed trial for the offence under the NDPS act in the background of huge pendency of the cases under the NDPS act in the State of Maharashtra for non establishment of sufficient Special court under the act to deal with the cases. The Hon'ble Supreme Court 'inter alia' took the following views:

'15 ........ On account of the strict language of the said provision very few persons accused of certain offences under the act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36 (1) of the act, Section 309 of the Code and articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in Section 37 of the act prescribing the conditions which have to be satisfied before a person accused of an offence under the act can be released. Indeed we have adverted to this section in the earlier part of the Judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TaDa act by the Constitution Bench in Kartar Singh V. State of Punjab,. Despite this provision, we have directed as above mainly at the call of article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in a.R. antulay v. R.S. Nayak, release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of article 21. as we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by article21. Of Course, Some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending tri