1994 (10) TMI 290 - SC - Customs

Whether the constitution of the Special Court can be said to be complete and effective only after the Judge to preside over the court is appointed? Held that - We are conscious of the fact that the menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy. But at the same time we cannot be oblivious to the fact that many innocent persons may also be languishing in jails if we recall to mind the percentage of acquittals. Since harsh punishments have been provided for under the Act, the percentage of disposals on plea of guilt is bound to be small; the State Government should, therefore, have realised the need for setting up sufficient number of Special Courts immediately after the amendment of the Act by Amendment Act 2 of 1989. We also recommend to the State Government to set up Review Committees headed by a Judicial Officer, preferably a retired High Court Judge, with one or two other members to review the cases of undertrials who have been in jail for long including those released under this order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the court for withdrawal of such cases. This will not only. help reduce the pendency but will also increase the credibility of the prosecuting agency. After giving effect to this order the Special Court may consider giving priority to cases of those undertrials who continue in jail despite this order on account of their inability to furnish bail. We, therefore, direct as under (i)Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount. (ii)Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than ₹ 50,000 with two sureties for like amount. (iii)Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount. (iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 3 1 and 3 1 A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. All the above directions are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Court s power to grant bail under Section 37 of the Act

Issues Involved:
1. Constitution of Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Jurisdiction of Courts during the transitional period before the establishment of Special Courts.
3. Delay in trials and its impact on undertrial prisoners, particularly foreigners.
4. Conditions for granting bail to undertrial prisoners under the Act.

Issue-Wise Detailed Analysis:

1. Constitution of Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985:

The Act was enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Section 36 of the Act allows the Government to constitute Special Courts for speedy trials. The Special Court is to be a Single Judge Court, appointed with the concurrence of the Chief Justice of the High Court. The process of constituting a Special Court begins with the issuance of a notification in the Official Gazette, specifying the area for which the court is constituted. The court is considered fully constituted only after the appointment of a Judge to man it.

2. Jurisdiction of Courts during the Transitional Period:

Section 36-D addresses the transitional period before the establishment of Special Courts. Offences committed under the Act on or after 29-5-1989, until a Special Court is constituted, are to be tried by a Court of Session. The Court of Session retains jurisdiction even after the Special Court is constituted if it has already taken cognizance of the offence. This provision aims to avoid a stalemate situation and ensure continuous judicial proceedings.

3. Delay in Trials and its Impact on Undertrial Prisoners, Particularly Foreigners:

The delay in the constitution of Special Courts led to a backlog of cases, causing prolonged detention of undertrial prisoners. The Supreme Court Legal Aid Society filed a petition under Article 32 of the Constitution, highlighting the plight of undertrial prisoners, especially foreigners, languishing in jails due to delayed trials. The Court emphasized that prolonged detention without speedy trial violates Articles 14, 19, and 21 of the Constitution, which ensure the right to personal liberty and a fair, just, and reasonable procedure.

4. Conditions for Granting Bail to Undertrial Prisoners under the Act:

The Court provided specific directives for granting bail to undertrial prisoners to address the delay in trials:
- Undertrials accused of offences punishable with imprisonment of five years or less should be released on bail if they have been in jail for at least half the maximum punishment period.
- Undertrials accused of offences punishable with imprisonment exceeding five years should be released on bail on similar terms, with a minimum bail amount of Rs 50,000.
- Undertrials accused of offences punishable with a minimum imprisonment of ten years should be released on bail if they have been in jail for at least five years, with a bail amount of Rs 1 lakh.
- Undertrials charged under Sections 31 and 31A of the Act are not entitled to bail under this order.

General conditions for bail included depositing passports, regular reporting to the police station, and not leaving the area without permission. The Court also suggested setting up Review Committees to review long-pending cases and recommend withdrawals to reduce the backlog.

Conclusion:

The Court's judgment addressed the need for the timely constitution of Special Courts under the Act to ensure speedy trials and avoid prolonged detention of undertrial prisoners. It provided a clear framework for the jurisdiction of Courts during the transitional period and laid down specific conditions for granting bail to undertrial prisoners to uphold their constitutional rights. The judgment also emphasized the importance of setting up sufficient Special Courts and Review Committees to manage the backlog of cases effectively.

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