IMPORTANT POINT
The fundamental right to expeditious trial cannot be diluted by statutory provisions such as Section 37 of the ND&PS Act, especially in cases of prolonged pre-trial incarceration.

JUDGMENT :

Satyen Vaidya, J.

Petitioner is facing trial for offence under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), before learned Special Judge, Kullu. He has been charged for being in possession of commercial quantity of Charas (2 Kg 144 Grams).

2. Petitioner was booked for above offence, vide FIR No. 193 of 2022, dated 06.09.2022, registered at Police Station Bhuntar, District Kullu, H.P. The allegation against petitioner is that on 6.07.2022, at about 6:00 PM, a police patrol party apprehended petitioner at place Kishtanu near Gadsa within the jurisdiction of Police Station Bhuntar, District Kullu, H.P.. As per police, petitioner tried to flee from the scene at the sight of police and also threw the carry bag held by him towards bushes. The carry bag thrown by the petitioner was searched and 2 Kg 144 Grams of Charas was recovered.

4. 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 one year and seven months and the trial has not concluded, rather, it is progressing at snail’s pace.

5. It has been revealed from records that out of sixteen cited witnesses only five witnesses have been examined till date.

6. 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.

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

8. 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.

9. 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 06.09.2022. 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. In Rabi Prakash Vs. The State of Odisha, (2023) LiveLaw (SC) 533, Special Leave to Appeal (Crl.) No.(s) 4169 of 2023, decided on 13.07.2023, Hon’ble Supreme Court has observed as under:-

“4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

10. 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.

11. 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