Point of Law: Fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to petitioner.

JUDGMENT :

Satyen Vaidya, J.

Petitioner is an accused in case FIR No. 190 of 2019, dated 12.11.2019, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Chowari, District Chamba H.P. Petitioner is in custody since 21.11.2019.

2. The challan is stated to have been filed and the trial is pending before Special Judge, Chamba. The police official Mr. Rakesh Kumar is present in the Court today alongwith police record. He has informed that there are thirty-one cited prosecution witnesses, out of which only nine witnesses have been examined till date.

3. Petitioner has now prayed for grant of bail on the sole ground that his constitutional right to speedy trial has been violated. It is further contended that petitioner has nowhere been at fault in causing the delay in conclusion of trial. As per petitioner, the final conclusion of trial is going to take considerable time and his liberty cannot be curtailed for indeterminate period.

4. Per-contra, learned Additional Advocate General has opposed the prayer. It is submitted that petitioner is involved in a serious and heinous crime involving commercial quantity of charas. He is not entitled to be released on bail keeping in view the rigors of Section 37 of ND&PS, Act. It is further submitted that the petitioner on earlier occasion also approached this Court by way of Cr.MP No. 214 of 2023, but the same was disallowed with the observation that learned Trial Court would conclude the trial expeditiously.

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

6. Learned counsel for the petitioner has placed on record a copy of order dated 17.02.2023, passed by this Court in Cr.MP No. 214 of 2023 as Annexure P-1. Its perusal reveals that the facts were not correctly represented and hence it was recorded that out of twenty-two witnesses, twelve had been examined. It was in this background that the prayer of the petitioner for bail was dis-allowed at that stage with an observation that learned Trial Court would conclude the trial expeditiously. However, now it is revealed that prosecution has cited thirty-one witnesses and only nine of them have been examined till date.

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 21.11.2019. 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 pet