Delay in trial alone is not a ground for grant of bail under Section 37 of the NDPS Act, especially when the accused is involved in other similar crimes and the investigation is completed.

ORDER

Dated this the 18th day of November, 2023 This is the second application for bail submitted by the 4th accused in Crime No.1848 of 2021 of the Palakkad Town South Police Station, registered for offences punishable under Sections

22(c) and 29 of the NDPS Act.

2. The prosecution allegation is that, on

08.10.2021 at 10.29 a.m., the Sub Inspector of Police, Palakkad Town South Police Station found the first accused in illegal possession of 1.1138 grams of LSD and the second accused, in possession of 3.1791 grams of MDMA. The accused were arrested at the spot. On questioning, they stated that the contraband articles were given to them by the third accused, who in turn, had procured it from the petitioner. The third accused was arrested on 25.08.2022 and Section 27 A of NDPS Act was added along with the former Sections. The petitioner was arrested much later, on 13.03.2023 and is in judicial custody from then onwards. The earlier bail application filed by the petitioner was dismissed as per Annexure A1 order dated 16.05.2023, taking into account the rigor of Section 37 of the NDPS Act and the petitioner's involvement in similar offences. 3. Learned Counsel for the petitioner submitted that, the investigation of the case is completed and final report has been submitted. The jurisdictional court is yet to frame charge and hence, the trial and disposal of the case will not happen in the near future. Relying on the decision in Mohd Muslim @ Hussain v State (Nct of Delhi) [2023 KHC 6336 (SC)], it is contended that, if the trial of the case is unduly delayed and the accused is languishing in jail, the fetter of Section 37 will get diluted, since Section 436A of Cr.P.C is applicable even for offences under the NDPS Act. It is further submitted that the other three accused have already been granted bail and continued incarceration of the petitioner in such circumstances, is unjustified.

4. Learned Public Prosecutor opposed the prayer for bail by contending that the petitioner had supplied the contraband to the third accused, who in turn, had handed it over to accused Nos.1 and 2 for the purpose of sale. The bank account statement of the petitioner reflects transactions amounting to Rs.1.6 Crores, which includes transactions between the petitioner and the third accused. Moreover the petitioner is involved in two other cases registered for offences under Section 22(b) and 29 of the NDPS Act. As such, the petitioner is the kingpin of the drug racket and his enlargement on bail will give a wrong message to the society.

5. In reply, it is submitted that the petitioner is granted bail in the other two crimes registered against him and merely because the account statements reflect certain financial transactions, there cannot be an assumption that the transactions are with respect to drugs and psychotropic substances.

6. The prime contention urged on behalf of the petitioner is that Section 37 can no longer be fetter for granting bail, since the trial is unduly delayed. No doubt, in Mohd Muslim @ Hussain (supra), the Apex Court has held that 'undue delay in trial will be a ground for delay in granting bail despite the fetter contain in Section 37'. Therein, the accused was arrested on 03.10.2015 and was languishing in jail even as on 28.03.2023, the date on which the judgment was delivered by the Apex Court. On the other hand, the petitioner was arrested on 25.08.2022 and the final report has been filed. Section 436A of Cr.P.C will apply only if the under-trial prisoner has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence. As such, neither the mandate of Section 436A Cr.P.C nor the dictum laid down in Mohd Muslim @ Hussain (supra) will apply. The fact that the petitioner is involved in two other crimes of similar nature also deters this Court from enlarging him on bail.

In the result, the bail application is dismissed.