2020 (11) TMI 1078 - HC - Indian Laws

Grant of bail - Whether restrictions imposed by Section 37 of the NDPS Act are over ridden by the operation of the directions given by the Hon ble Apex Court in SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONRE VERSUS UNION OF INDIA 1994 (10) TMI 290 - SUPREME COURT in the matter of grant of bail to undertrials in NDPS cases? HELD THAT - It is the duty of every Court including the High Courts when faced with the question of bail or jail to bear in mind the beholden principles of parity and equal access to justice. Courts need to rise above petty technicalities to preserve and restore liberty to all similarly circumstanced persons. Failure to do so would create privileged oases of liberty accessible to few and denial of freedom to most. Delay may also be caused by an accused and it is nobody s case that such a litigant can derive benefit out of his own wrong. However the principle of apportionment of responsibility in the matter of delay in trial must be counteracted in the backdrop of the constitutional duty of the State to ensure effective and speedy prosecution. The Constitution assures every individual the precious right of personal liberty and when it is forfeited by the State to ensure administration of criminal justice a heavy corresponding duty is cast on it to ensure speedy conclusion of trial minimizing under trial detention - there are no special feature relating to contributory role of the petitioner in the inordinate delay in trial. Absence of forensic laboratories under staffing in those laboratories inadequate number of prosecutors and frequent transfer of official witnesses cause chronic delay in trial of narcotic cases. he directives in Supreme Court Legal Aid Committee applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution. The petitioner shall be released on bail upon furnishing a bond of Rs. 2, 00, 000/- with ten sureties of Rs. 20, 000/- each one of whom must be local to the satisfaction of the learned Judge Special Court under NDPS Act North 24 Pargans subject to the conditions that petitioner shall appear before the trial court on every date of hearing until further orders - Let this matter appear on 15th January 2021.

Summary

Issues Involved:
1. Whether restrictions imposed by Section 37 of the NDPS Act are overridden by the directions given by the Supreme Court in the Supreme Court Legal Aid Committee vs. Union of India (1994) in the matter of granting bail to undertrials in NDPS cases.
2. The impact of inordinate delay in trial on the fundamental rights of the petitioner under Articles 14 and 21 of the Constitution of India.
3. The applicability of Section 436A of the Code of Criminal Procedure in the context of prolonged detention of undertrials.

Issue-wise Detailed Analysis:

1. Overriding of Section 37 of the NDPS Act by Supreme Court Directions:
The legal question raised was whether the restrictions imposed by Section 37 of the NDPS Act are overridden by the Supreme Court's directions in the Supreme Court Legal Aid Committee vs. Union of India (1994) regarding bail for undertrials in NDPS cases. Section 37 of the NDPS Act imposes strict conditions on granting bail, requiring the Public Prosecutor to be given an opportunity to oppose the bail application and the court to be satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offense while on bail. The court noted that the Supreme Court, in its judgment, took into consideration these statutory restrictions and emphasized the right to a speedy trial under Article 21 of the Constitution, which may necessitate granting bail due to inordinate delay in trials.

2. Inordinate Delay in Trial and Fundamental Rights:
The petitioner, who had been in custody for five years and six months with only two witnesses examined, sought bail on the grounds of inordinate delay in trial, infracting his fundamental rights under Articles 14 and 21 of the Constitution. The court highlighted that the right to bail for an undertrial flows from Article 21, which opposes unnecessary and prolonged detention. The court referred to the Supreme Court's observation that prolonged detention without ensuring a speedy trial would violate Article 21. The court also noted that the Supreme Court's directives in the Supreme Court Legal Aid Committee case were not a one-time measure but were extended to other states, emphasizing the need for equal justice and the right to personal liberty.

3. Applicability of Section 436A of the Code of Criminal Procedure:
The Additional Solicitor General argued that undertrials could apply for bail only after complying with Section 436A of the Code of Criminal Procedure, which allows for bail if the undertrial has undergone detention for half of the maximum sentence for the alleged offense. The court, however, held that the directives of the Supreme Court in the Supreme Court Legal Aid Committee case and Section 436A Cr.P.C. operate in the same field and are supplementary to each other. The court emphasized that these directives should be extended to all undertrials who are similarly situated, ensuring equal justice and personal liberty.

Conclusion:
The court concluded that the petitioner should be released on bail due to the inordinate delay in trial, infracting his fundamental rights under Articles 14 and 21 of the Constitution. The petitioner was directed to be released on bail upon furnishing a bond of Rs. 2,00,000/- with ten sureties of Rs. 20,000/- each, subject to conditions including appearing before the trial court on every hearing date, not intimidating witnesses, and reporting to the concerned police station once a week. The court also directed the submission of reports enumerating cases under the NDPS Act where accused persons have been in detention for five years or more to ensure equal justice for all undertrials.

The matter was scheduled to appear again on 15th January 2021.