1992 Supreme(Raj) 939
RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.L.Tibrewal, J.
Mohammed Hussain - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cri. Misc. Bail Application No. 3773 of 1992.
Decided On : 13-11-1992
Advocates:
For the Petitioner:Mrs. Kamla Jain, Advocate.
For the State: Mr. M.K. Kaushik, P.P.
Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not create a complete bar to grant of bail to the accused even in grave circumstances, which may require his release.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - BAIL - CONDITIONS FOR GRANT OF BAIL - UNDUE DELAY IN TRIAL - SECTION 439, CR.P.C. - INTERPRETATION - APPLICABILITY OF SECTION 37 OF THE ACT TO CASES OF UNDUE DELAY IN TRIAL - HELD, SECTION 37 OF THE ACT DOES NOT CREATE A COMPLETE BAR TO GRANT OF BAIL TO THE ACCUSED EVEN IN GRAVE CIRCUMSTANCES, WHICH MAY REQUIRE HIS RELEASE.
Fact of the Case:
The petitioner was arrested on 19.4.91 for possession of 3.5 grams of smack. He was denied bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, despite the fact that he had been in jail for over 18 months and the trial had not yet been completed.
Finding of the Court:
The court held that Section 37 of the Act does not create a complete bar to grant of bail to the accused even in grave circumstances, which may require his release. Section 439, Cr.P.C. and Section 37 of the Act have to be read in a harmonious manner and normally an accused arrested for an offence under the Act punishable for a term of imprisonment of five years or more should not be released on bail unless the courts are satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There can be exceptional circumstances as indicated above, including the undue delay in the trial of the case, small quantity of the contraband article, the tender age of the accused or the accused is a woman etc. etc. In case of undue delay, fundamental right of an accused is jeoperdised, and at the stage of pre-trial he cannot be kept behind the bars for an indefinite period.
Issues: Whether Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 creates a complete bar to grant of bail to the accused even in grave circumstances, which may require his release.
Ratio Decidendi: The court held that Section 37 of the Act does not create a complete bar to grant of bail to the accused even in grave circumstances, which may require his release. Section 439, Cr.P.C. and Section 37 of the Act have to be read in a harmonious manner and normally an accused arrested for an offence under the Act punishable for a term of imprisonment of five years or more should not be released on bail unless the courts are satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There can be exceptional circumstances as indicated above, including the undue delay in the trial of the case, small quantity of the contraband article, the tender age of the accused or the accused is a woman etc. etc. In case of undue delay, fundamental right of an accused is jeoperdised, and at the stage of pre-trial he cannot be kept behind the bars for an indefinite period.
Final Decision: The court allowed the bail application and ordered the petitioner to be released on bail on furnishing a personal bond of Rs. 5,000/- with one surety in the like amount.
JUDGMENT
1. - An important question of law has been raised in this bail application filed by the petitioner under Section 439, G.P.C. in a criminal case pending against him under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The question is, whether in view of Section 37 of the Act, the accused cannot be released on bail under Section 439, Cr.P.C., even in a case where there has been an undue delay in conducting the trial, and thereby infringing the fundamental right available to him under Article 21 of the Constitution.
2. In order to appreciate the arguments, the relevant and necessary facts may be given in brief. It is alleged that on 19.4.91 three and a half grams of smack was seized from the possession of the petitioner on his search. A report was made at the police station, and thereafter, after completion of the investigation, a charge sheet was filed against him under S. 8/21 of the Act. Since April 19, 1991, the petitioner is in jail and no satisfactory progress in the trial of the case has been made as yet, though more than 18 months have already passed since his detention.
3. The main thrust of the argument of the learned counsel is that the petitioner has already remained in custody for a period of more than 18 months, and there has been no substantial progress in the trial of the case. According to the learned counsel, the petitioner has a fundamental right under Article 21 of the Constitution for a speedy trial of the case, and that on account of undue delay in the completion of the trial, he has a right to be released on bail forthwith, as his fundamental right stands infringed. Counsel argued that S. 37 of the Act cannot override the constitutional right available to the petitioner under Article 21 of the Constitution. It was also submitted that the quantity of smack recovered from the possession of the petitioner is very small, as such the petitioner should be released on bail.
4. On the other hand, the learned P.P. strongly contested the release of the petitioner on the ground that till the conditions contained in Section 37 of the Act are satisfied, the petitioner cannot be released on bail, even if there has been an undue delay in the trial or the quantity of smack recovered from the possession of the petitioner is small.
5. It is now well settled that Article 21 of the Constitution of India provides that there is a fundamental right available to a person to have a speedy trial in a criminal case pending against him. It is also a settled law that in case of a violation of such fundamental right, the accused can claim to be released on bail. Further, any procedure, which deprives a person of his life or liberty must be just, fair and reasonable. A just, fair and reasonable procedure implies a right of speedy trial. This preposition of law has been developed by the Apex Court of the country by various land mark judgments including Menka Gandhi's case AIR 1979 SC 1369 and Hussainara Khatoon's case AIR 1979 SC 1369. In Kadra Pehadia v. State of Bihar, AIR 1981 SC 1369 , it was again held that a speedy trial is a fundamental right of the accused under Article 21 of the Constitution. In Sriniwas Gopal v. Union Territory of Arunachal Pradesh, 1983 (3) Judgments Today, SC 342 , it has been again reiterated that quick Justice is a sine que non of Article 21 of the Constitution. This Court has also consistently adopted a practice to release an accused on bail, even in cases in which an accused is facing trial under a grave offence, if there has been undue delay in the trial.In Noor Taki alias Mammu v. State of Rajasthan, 1986 RLR 195 : AIR 1987 Raj. 52 , a full bench of this court considered the question as to whether an accused-approver can be released on bail in exceptional cases where the trial is not completed in a reasonable time. After considering various judgments of the various High Courts and the Apex Court of the country, it was held as under:-
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