TMI Blog2023 (5) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... Shaheen Welfare Association v. Union of India [[ 1996 (2) TMI 597 - SUPREME COURT] ] again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. What is meant by not guilty when all the evidence is not before the court? It can only be a prima facie determination - Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emarking that a valid procedure under Article 21 is one which contains a procedure that is reasonable, fair and just it was held that: Now obviously procedure prescribed by law for depriving a person of liberty cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. 3. These observations have resonated, time and again, in several judgments, such as Kadra Pahadiya Ors. v. State of Bihar [(1981) 3 SCC 671] and Abdul Rehman Antulay v. R.S. Nayak [[1991] Supp. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant to further investigation, three other co-accused (Virender Singh @ Beerey, Shantilal Tigga @ Guddu, and Nepal Yadav @ Tony Pahalwan) were also arrested. It is the prosecution s case that Virender Singh @ Beerey would purchase ganja and make transfers to the bank accounts belonging to Mohd. Muslim, Shantilal Tigga @ Guddu and Nitesh Ekka, and their friends and families, before further supplying the ganja to Nepal Yadav @ Tony Pahalwan. On 29.02.2016, the chargesheet was filed under Sections 20/ 25/ 29 of the NDPS Act and Section 120B IPC, and on 05.07.2016 the charges were framed against the appellant and other co-accused. As per pleadings, two supplemental chargesheets were also filed on 01.08.2016 and 08.11.2017. 6. The appellant s bail application was rejected by the district court [Order dated 08.06.2022 in FIR No. 148/2015, passed by the ASJ Special Judge (NDPS), South East District, Saket Court, New Delhi.] based on the gravity of the offences alleged, severity of punishment, and the appellant s alleged role. It was noted that he had been in regular contact with the other co-accused to commit the crime, and that material witnesses were yet to be examined. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role of the appellant, though he is a co-accused is prominent, as he appears to be the mastermind behind the supply and delivery of narcotic substances from Chhattisgarh. Analysis and Conclusions 10. Section 37 of the NDPS Act reads as follows: Offences to be cognizable and non-bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, or granting of bail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wful Activities Act (Prevention) Act, 1967, this court in Union of India v. K. A. Najeeb [[2021] 2 SCR 443: (2021) 3 SCC 713] observed that: 12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the NDPS Act ) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005) 11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. The court concluded that statutory restrictions like Section 43-D(5) of the UAPA, cannot fetter a constitutional court s ability to grant bail on ground of violation of fundamental rights. 15. Even in the judgment reported as Vijay Madanlal Chaudhary v. Union of India [[2022] 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code. 17. The facts in this case reveal that the recovery of ganja was made on 28.09.2015, from the four co-accused, including Nitesh Ekka. The present appellant was arrested at the behest, and on the statement of this Nitesh Ekka. The prosecution has relied on that statement, as well as the confessional statement of the present appellant; in addition, it has relied on the bank statements of Virender Singh @ Beerey, who allegedly disclosed that money used to be transferred to the appellant. As against this, the prosecution has not recovered anything else from the appellant; its allegation that he is a mastermi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws be balanced against the public interest. 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the prisoner turning to crime, as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal [ Working Papers - Group on Prisons Borstals - 1966 U.K.] (also see Donald Clemmer s The Prison Community published in 1940 [ Donald Clemmer, The Prison Community (1968) Holt, Rinehart Winston, which is referred to in Tomasz Sobecki, Donald Clemmer s Concept of Prisonisation , available at: https://www.tkp.edu.pl/wpcontent/ uploads/2020/12/Sobecki_sklad.pdf (accessed on 23rd March 2023)]. ). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily. 24. For the above reasons, the appellant is directed to be enlarged on bail, subject to such conditions as the trial court may impose. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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