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.)

1. Petitioner is an accused in case FIR No. 198/2021, dated 15.11.2021, registered under Section 22 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Paonta Sahib, District Sirmour, H.P. Petitioner is in custody since 15.11.2021.

2. Petitioner is facing trial for offences under Section 22 of ND&PS Act in pursuance to challan filed by respondent. The case of the prosecution is that on 15.11.2021, at about 3:15 pm, at place Kishanpur Road near Panchayat Ghar Badripur, when police officials were on patrol duty, a secret information was received that one person namely Hussain Mohammad is selling narcotic and psychotropic substances in the area of Gujjar Colony on grey coloured Scooty. On search, three boxes containing 715 capsules and 300 tablets were recovered from the Scooty. Each strip contained Tramadol Hydrochloride IP 50 mg substance and each tablet contained Alprasafe-0.5/Alprazolam IP 0.5 mg substance. The case was registered and petitioner was formally arrested. Petitioner is in custody since then.

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 one year and six months and not even a single prosecution witnesses has been examined till date.

4. 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.

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. 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.

7. 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 15.11.2021. 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.

8. 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.

9. 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.”

10. 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 petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

11. In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022)