Point of Law : Rigors of Section 37 of Act can have efficacy in perpetuate and more particularly in case where trial is not concluded within a reasonable period.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, the petitioner has prayed for grant of bail in case FIR No. 98/2021, dated 01.06.2021, registered under Sections 18, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (for short “ND&PS Act), at Police Station Sadar, District Bilaspur, H.P.

2. The petitioner is in custody since 1.6.2021. He is accused of offence under Section 18 of the Act. The allegation against the petitioner is that he was found in conscious possession of commercial quantity of opium.

3. It has been contended for petitioner that he is in custody for the last more than two years and the trial has not yet concluded. It has also been submitted that constitutional right of the petitioner to speedy trial has been violated.

4. Learned Additional Advocate General has opposed the prayer on the ground that the petitioner is accused of a serious offence. He is not entitled to bail in view of the rigors of Section 37 of the Act.

5. I have heard learned counsel for the parties and have also gone through the record carefully.

6. Petitioner was arrested on 1.6.2021 and his custody is still continuing. This Court has been informed that the case is now fixed for recording the evidence of the prosecution witnesses on 20.06.2023. In this view of the matter, the trial of the petitioner is not likely to conclude within short time, as the petitioner after conclusion of prosecution evidence, may opt to lead defence evidence.

7. Indisputably, accused has constitutional right for speedy trial. Weighed against such constitutional right, it cannot be said that the rigors of Section 37 of the Act can have efficacy in perpetuate and more particularly in case where trial is not concluded within a reasonable period. There is nothing on record to suggest that the delay in trial has been caused for any reason attributable to the petitioner.

8. In order to secure the presence of petitioner for the purpose of trial, appropriate conditions can be imposed against him. Petitioner is permanent resident of Village Majhar, Post Office Lota Bajar, Police Station Pakri Dayal, District Motihari, East Champaran, Bihar. There is no immediate apprehension of his absconding from the course of justice.

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 punishable under Sections 8,20,27-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1098.

The application seeking relief of bail having been rejected,