Point of Law: Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of ND&Ps Act in perpetuity.

JUDGMENT :

Satyen Vaidya, J.

Petitioner is an accused in case FIR No. 36/2021, dated 16.02.2021, registered under Sections 15, 25 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Aut, District Mandi, H.P. Petitioner is in custody since 16.02.2021.

2. Petitioner is facing trial for offences under Sections 15, 25 and 29 of ND&PS Act in pursuance to challan filed by respondent. The allegation against petitioner is that on 16.02.2021, at about 3:10 am, near Aut approximately 300 mtrs. ahead towards Four Lane Construction Site, when police party was on patrol duty, a secret information was received from one of the worker of this site that one vehicle was coming from Kullu to Mandi side and on noticing police presence had stopped, three persons had alighted from the vehicle and had run towards river by leaving the vehicle on road. It is further averred that when police moved approximately 100 meter ahead towards Kullu, one vehicle was found parked, which was identified as the same vehicle, which had been left there. On continuous search, two persons were found with wet feet on the banks of river at about 7:15 am. They got perplexed. On interrogation, they told their names as Bhola Singh and Jaswinder Singh. On search of vehicle ‘Opium Doda’ weighing 65 Kgs 720 Grams was recovered from the five jute bags in their presence. Petitioner was arrested alongwith his co-accused.

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 & three months and the trial has not concluded, rather, it is progressing at snail’s pace.

4. In its status report dated 25.05.2023, respondent has submitted that prosecution witnesses have been summoned for 10.07.2023 for examination before learned District and Sessions Judge-I, Mandi, H.P.

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. Petitioner had earlier approached this Court for bail by way of Cr.MP(M) No. 2310 of 2011. Rigors of Section 37 of ND &PS Act were considered by this Court to disentitle the petitioner from grant of bail.

8. Another attempt was made by petitioner to seek bail by filing Cr.MP(M) No.814 of 2023, but again remained unsuccessful. The ground of denial of bail this time was non disclosure of earlier bail application filed by the petitioner. However, liberty was reserved in favour of petitioner to approach this Court again with better particulars.

9. 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. Thus, the instant application can be considered under changed circumstances.

10. 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 16.02.2021. 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.

11. 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 bee