2022 (11) TMI 1511 - HC - Indian Laws

Grant of bail under Section 439 of Cr.P.C. for offences under Section 20(b)(ii)(C) of the N.D.P.S. Act - possession of contraband Ganja - right to speedy trial - HELD THAT - A careful perusal of the allegation in the case at hand would go to indicate that commercial quantity of contraband articles was allegedly recovered from a vehicle in which the petitioner was one of the occupants and thereby, the case of the petitioner cannot be considered similar to the case Bharat Choudhury 2021 (12) TMI 613 - SUPREME COURT nor the petitioner was implicated in this case solely on the confession of co-accused. Right of speedy trial is undeniably a right of the accused guaranteed under Article 21 of our Constitution, but each and every day delay does not necessarily amount to long delay causing prejudice to the accused, besides how long time would be considered as long delay affecting the right of the accused to speedy trial has not been precisely explained. In order to safe guard the Right of speedy trial to accused, legislatures has enacted and introduced the provision of Section 436(A) of the Cr.P.C. in general by way of amendment as also Section 437(6) of the Cr.P.C. for cases triable by a Magistrate. Further, Section 436(A) of the Cr.P.C. prescribes the maximum period for which an under trial prisoner can be detained for an offence under law except where punishment for the offence is death. In other words, where the accused has been charged for offences punishable with life or minimum for ten years which may extend to twenty years and the offences are heinous and serious having deep impact over society at large, mere detention of accused in custody for two or three years in a peculiar facts and circumstance of the case may not be considered as undue delay, but it is not absolute in each and every case especially when deprivation of personal liberty of an accused without assurance of a speedy trial which is the legitimate expectation of the under trial prisoner, cannot be countenanced under law, more so, when the delay is not attributable to the accused. It appears that the petitioner was one of the occupants of the vehicle in which contraband Ganja was allegedly being transported and the petitioner was allegedly apprehended from the spot. It is therefore clear that the petitioner has to satisfy the twin conditions of Section 37(1)(b)(ii) of N.D.P.S. Act so as to entitle him the discretion of bail. There appears no hesitation in the mind of the Court that in absence of mandatory compliance Section 37(1)(b)(ii) of N.D.P.S. Act, the petitioner cannot be granted bail merely on the ground of detention in custody for some period. In this case, when the State counsel opposes the bail application of the petitioner for want of compliance U/S. 37 of N.D.P.S. Act, this Court, however, on conspectus of materials on record considers it hard to record satisfaction at this stage of the case that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is unlikely to commit any offence while on bail. Hence, when the petitioner has not been able to comply Section 37 of N.D.P.S. Act, his bail application cannot be considered affirmatively enuring to his benefit. The BLAPL of the petitioner stands rejected.

Summary

Issues Involved:
1. Grant of bail under Section 439 of Cr.P.C. for offences under Section 20(b)(ii)(C) of the N.D.P.S. Act.
2. Application of Section 37 of the N.D.P.S. Act.
3. Parity in bail with co-accused.
4. Right to speedy trial.
5. Conscious possession of contraband.
6. Criminal antecedents of the petitioner.

Detailed Analysis:

1. Grant of Bail under Section 439 of Cr.P.C. for offences under Section 20(b)(ii)(C) of the N.D.P.S. Act:
The petitioner sought bail in connection with a case involving the transportation of 246 Kgs. 800 grams of Ganja, a commercial quantity. The petitioner was arrested along with co-accused while transporting the contraband in a truck. The petitioner argued that no incriminating materials were recovered from his personal possession and that he was merely an occupant of the vehicle.

2. Application of Section 37 of the N.D.P.S. Act:
Section 37 of the N.D.P.S. Act imposes stringent conditions for granting bail in cases involving commercial quantities of narcotics. The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. The court noted that these conditions were not met by the petitioner.

3. Parity in Bail with Co-Accused:
The petitioner argued for bail on the principle of parity, citing that co-accused Bikram Singh, standing on similar footing, had been granted bail. However, the court observed that the orders granting bail to co-accused did not consider the mandatory provisions of Section 37 of the N.D.P.S. Act. The court emphasized that bail cannot be granted mechanically on the ground of parity if statutory provisions are violated.

4. Right to Speedy Trial:
The petitioner had been in custody for over three years, and only one out of nineteen charge sheet witnesses had been examined. The petitioner argued that this delay infringed his right to a speedy trial. The court acknowledged the right to a speedy trial but noted that mere detention for two or three years does not automatically justify bail, especially in cases involving serious offences with severe punishments.

5. Conscious Possession of Contraband:
The petitioner contended that he was not in conscious possession of the contraband as it was recovered from the vehicle's carriage and not from his personal possession. The court, however, noted that the petitioner was one of the occupants of the vehicle transporting the contraband and was apprehended from the spot, making the argument of lack of conscious possession unconvincing.

6. Criminal Antecedents of the Petitioner:
The petitioner had no prior criminal antecedents. However, the court held that this alone was insufficient to grant bail, given the stringent requirements under Section 37 of the N.D.P.S. Act.

Conclusion:
The court concluded that the petitioner failed to satisfy the twin conditions of Section 37(1)(b)(ii) of the N.D.P.S. Act, which are mandatory for granting bail in cases involving commercial quantities of narcotics. The petitioner's arguments regarding parity, right to a speedy trial, and lack of conscious possession were not sufficient to override the statutory requirements. Therefore, the bail application was rejected.