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2022 (6) TMI 1331 - HC - Indian LawsSeeking grant of bail - recovery of commercial quantity of heroin (in addition to an intermediate quantity of charas) - contraband item - baggage rules - whether or not the applicant is entitled to be released on bail on the ground of prolonged incarceration as an undertrial prisoner? - HELD THAT - The Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India and Others 1994 (10) TMI 290 - SUPREME COURT judgment is of foremost significance in this regard. The petition before the Supreme Court was motivated by the delay in disposal of cases under the Act particularly involving foreigners. During the proceedings the scope was expanded to cover all undertrial prisoners who were in jail for offences under the Act for a period of over two years. The Court noted that despite the provision for trial before Special Courts under the Act the disposal of cases has taken much longer than originally envisioned. The Supreme Court found that the delay in trial when read with the stringent provisions of Section 37 of the Act render the fundamental rights of the accused under Articles 14 19 and 21 of the Constitution in jeopardy. Although the Court declined to quash the charges against the accused on this basis it accepted the alternative submission that the accused should be released on bail after a certain period of incarceration if the trial has been delayed beyond a reasonable time. The Court categorized the cases according to the punishment prescribed for the offence in question. As the applicant has been in custody for eight years already six PWs are yet to be examined and on the consideration of the various factors noted above including the provision of Section 37 of the Act as interpreted in the above judgment of the Supreme Court it is opined that the applicant is entitled to be released on bail. It is therefore directed that the applicant herein be admitted to bail subject to conditions imposed - application allowed.
Issues Involved:
1. Prolonged incarceration as an undertrial. 2. Applicability of the Supreme Court Legal Aid Committee (SCLAC) judgment. 3. Sampling procedure adopted by the NCB. 4. Citizenship status of the applicant. 5. Applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Issue-wise Detailed Analysis: 1. Prolonged incarceration as an undertrial: The applicant has been in custody since 03.06.2014, totaling eight years. The applicant's bail application was previously rejected by the Special Court on 11.11.2020, and a subsequent application was withdrawn on 22.03.2021. The applicant's prolonged incarceration was argued as a ground for bail, citing the Supreme Court judgment in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India and Others (SCLAC), which laid guidelines for releasing undertrial prisoners on bail due to prolonged detention. 2. Applicability of the Supreme Court Legal Aid Committee (SCLAC) judgment: The applicant's counsel argued that the SCLAC judgment should apply, as it provides for bail if the accused has been in jail for not less than five years for offenses punishable with a minimum imprisonment of ten years. The Supreme Court in SCLAC emphasized that prolonged delay in trials, especially under the NDPS Act, jeopardizes the accused's fundamental rights under Articles 14, 19, and 21 of the Constitution. The Court directed that such undertrials be released on bail, subject to certain conditions. 3. Sampling procedure adopted by the NCB: The applicant's counsel contended that the sampling procedure was flawed as substances from different packets/tubes were mixed before drawing samples for chemical testing, thus vitiating the representative character of the samples. This argument was based on judgments from coordinate benches of the Delhi High Court in cases like Amani Fidel Chris vs. NCB, Charlse Howell @ Abel Kom vs. NCB, and Mokibe MR Leepile Moses @ Patrick Umechukwu vs. NCB. However, it was held that the legality of the sampling procedure must be determined at the trial's conclusion, not at the bail stage. 4. Citizenship status of the applicant: The prosecution argued that the applicant, being a foreign national, posed a flight risk and could tamper with evidence. The applicant's counsel countered that the NDPS Act does not differentiate between citizens and foreigners regarding bail. The SCLAC judgment also provides specific conditions for granting bail to foreign nationals, such as impounding passports and requiring a certificate of assurance from the respective embassy. The applicant is married to an Indian citizen and has a child residing in New Delhi, establishing his roots in society. 5. Applicability of Section 37 of the NDPS Act: Section 37 of the NDPS Act imposes stringent conditions for granting bail, especially for offenses involving commercial quantities of narcotics. The applicant was accused of possessing 265 grams of heroin (commercial quantity) and 175 grams of charas (intermediate quantity). The court must be satisfied that there are reasonable grounds to believe the applicant is not guilty and is not likely to commit any offense while on bail. Despite the stringent conditions, the court considered the prolonged incarceration and the principles laid down in the SCLAC judgment to grant bail. Conclusion: The applicant was granted bail subject to several conditions, including furnishing a personal bond of ?1 lakh with two sureties, depositing his passport, and presenting himself at the NCB office every Monday. The Special Court was directed to seek a certificate of assurance from the Nigerian High Commission and ensure the applicant resides at a verified address, among other conditions. The trial was directed to be concluded expeditiously, preferably by 31.12.2022. The observations made were solely for the bail application and would not prejudice the trial.
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