2023 (8) TMI 1546 - HC - Indian Laws

Seeking grant of regular bail - commercial quantity of contraband under the NDPS Act - Applicability of Section 37 of the NDPS Act concerning stringent conditions for bail - HELD THAT - It is manifest from the perusal of the Nominal Roll on record that the applicant has already spent 03 years 08 months and 10 days (approx.) in judicial custody and is thus entitled to be released on regular bail by virtue of the ratio laid down by the Supreme Court in Rabi Prakash 2023 (7) TMI 1459 - SC ORDER and Mohd Muslim 2023 (5) TMI 321 - SUPREME COURT . Though the FIR was registered on 16.10.2019, the trial is still at the stage of examination of prosecution witnesses and it appears that it would take some time for the prosecution evidence to be concluded and thus, the liberty of an individual cannot be restrained without any reasonable cause. Keeping in view the ratio laid down by the Supreme Court in Mohd. Muslim, prima facie and as of now, there is no material placed on record by the respondent to show that the applicant, if released, may involve himself in similar offences. It is also clear from the aforesaid that there has to be tangible or ascertainable material for the Court to reach any such conclusion. The absence whereof cannot be read against the individual. The applicant is entitled to be and is released on regular bail upon furnishing a personal bond of Rs.2,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:
1. Grant of bail under Section 439 Cr.P.C. in a case involving commercial quantity of contraband under the NDPS Act.
2. Applicability of Section 37 of the NDPS Act concerning stringent conditions for bail.
3. Parity in granting bail considering co-accused's release.
4. Prolonged incarceration and its impact on Article 21 of the Constitution.

Detailed Analysis:

1. Grant of Bail under Section 439 Cr.P.C.:
The applicant sought regular bail under Section 439 Cr.P.C. for an FIR registered under Sections 20/29 of the NDPS Act. The applicant was apprehended with a blue zip bag containing 10 kgs of Charas, a commercial quantity, which invokes the stringent conditions under Section 37 of the NDPS Act. The applicant had been in judicial custody for approximately 3 years and 8 months.

2. Applicability of Section 37 of the NDPS Act:
The prosecution argued that the contraband's commercial quantity necessitates the application of Section 37, which imposes stringent conditions for bail. The learned APP emphasized that the applicant's complicity could not be ruled out due to the recovery of Charas and the call records indicating contact with other accused persons. The court, however, considered the Supreme Court's interpretation in cases like Mohd. Muslim @ Hussain vs. State (NCT of Delhi), which highlighted that prolonged incarceration could override the statutory embargo under Section 37, aligning with Article 21's guarantee of liberty.

3. Parity in Granting Bail:
The applicant sought bail on the grounds of parity, as the co-accused had been released on bail. The court noted that while the co-accused was granted bail due to no recovery from him, the applicant's case involved recovery of contraband. However, the court considered the prolonged detention and the lack of any prior criminal antecedents, which weighed in favor of granting bail.

4. Prolonged Incarceration and Article 21:
The court emphasized the importance of Article 21 of the Constitution, which guarantees personal liberty. It cited the Supreme Court's judgments, which stress that prolonged detention without trial infringes on fundamental rights. The court observed that the applicant's incarceration for over three years without trial conclusion justified bail, as per the principles laid down in cases like Rabi Prakash vs. The State of Odisha.

Conclusion and Bail Conditions:
The court decided to grant bail to the applicant, considering the prolonged detention and the absence of evidence suggesting the applicant's likelihood to commit further offenses. The bail was granted with conditions, including surrendering the passport, not leaving Delhi without permission, cooperating with the trial, and ensuring the availability of the applicant's location to the police. Any violation of these conditions could lead to revocation of bail. The court clarified that this order does not reflect on the merits of the case.