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, 25 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), before learned Special Judge, Kullu, H.P.

2. Petitioner was booked for above offence, vide FIR No. 07 of 2023, dated 17.01.2023, registered at Police Station Sainj, District Kullu, H.P.. It is alleged against petitioner that on 17.01.2023, police intercepted Vehicle No. DL4CAM5932 with two occupants and one of them being the petitioner. On search of vehicle, 1 Kg 518 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 one year and three months and the trial has not concluded, rather, it is progressing at snail’s pace.

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, petitioner is in custody since 17.01.2023. 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.”

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 crimina