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. 200/2020, dated 26.12.2020, registered under Section 20 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), 1985, at Police Station, Chowari, District Chamba, H.P.. Petitioner is in custody since January, 2020.

2. Petitioner is facing trial for offences under Section 20 of ND&PS Act in pursuance to challan filed by respondent. The allegation against petitioner is that on 26.12.2020, at about 9:00 am at place Lahru, he was found carrying a bag in his right hand, from which 1 Kg 312 Grams of ‘Charas’ was recovered.

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 and five months now and the trial has not concluded, rather, it is progressing at snails pace.

4. In its status report dated 09.05.2023, respondent-State has submitted that only three prosecution witnesses had been examined till such date.

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. 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 provisions 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. It has been disclosed on behalf of the petitioner that prosecution has cited twenty-one witnesses in support of its case. Three witnesses have already been examined. Eighteen witnesses remain to be examined, despite the fact that petitioner is in custody since December, 2020. 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 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.”

12. In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022, Hon’ble Supreme Court has held as under:-

“The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishab