2025 (1) TMI 1314 - HC - Indian Laws

Seeking of grant of regular bail - smuggling - recovery of 99.876 grams of Etizolam salt which is a commercial quantity - offences punishable under Sections 22 61 85 of the NDPS Act - HELD THAT - The petitioner was arrested on 15.04.2022 whereinafter investigation was carried out and challan stands presented on 10.10.2022. Charges in the trial in question were framed on 23.11.2022. Total 10 prosecution witnesses have been cited out of which only 03 have been examined till date. The rival contention of learned counsel for the parties; as to whether the petitioner has been falsely implicated into the FIR in question whether mandatory provisions of Section 42 and Section 50 of the NDPS Act of 1985 have been complied with or not the weightage/veracity of the evidence brought by the prosecution alongwith challan (final report); are issues of contentious nature which are essentially required to be ratiocinated upon during the course of trial. Long back in HUSSAINARA KHATOON VERSUS HOME SECRETARY STATE OF BIHAR PATNA 1979 (2) TMI 194 - SUPREME COURT the Hon ble Supreme Court had declared that the right to speedy trial of offenders facing criminal charges is implicit in the broad sweep and content of Article 21 as interpreted by this Court . The right to a speedy and expeditious trial is not only a vital safeguard to prevent undue and oppressive incarceration; to mitigate anxiety and concern accompanying the accusation as well as to curtail any impairment in the ability of an accused to defend himself but there is an overarching societal interest paving way for a speedy trial. This right has been repeatedly actuated in the recent past and the ratio decidendi of the above-referred to Supreme Court s judgments have laid down a series of decisions opening up new vistas of fundamental rights - The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the Court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. The unequivocal inference is that where the trial has failed to conclude within a reasonable time resulting in prolonged incarceration it militates against the precious fundamental rights of life and liberty granted under the law and as such conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act 1985 ought to be considered as per facts of a given case. In other words grant of bail in a case pertaining to commercial quantity on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act 1985. Reverting to the facts of the case in hand; as per the custody certificate dated 08.01.2025 filed by the learned State counsel in Court today the petitioner has suffered incarceration for more than 02 years and 08 months. A perusal of the zimni orders dated 27.02.2023 10.04.2023 05.02.2024 02.08.2024 03.09.2024 16.10.2024 19.11.2024 27.11.2024 indicates that the trial is procrastinating conclusion thereof is not visible in near future and the delay in culmination thereof cannot be attributed to the petitioner. In fact a perusal of the zimni orders passed by the trial Court indicate that repeatedly summons as also bailable warrants have been issued against the Police officials who have not turned up to have their testimonies recorded as prosecution witnesses. The long inordinate custody of the petitioner as an undertrial without him being responsible for procrastination of the trial entitles him to grant of regular bail in the factual matrix of the case in hand. Conclusion - The right to a speedy trial is integral to Article 21 and prolonged pre-trial detention without justifiable cause violates this right. The statutory conditions under Section 37 of the NDPS Act must be balanced against the accused s fundamental rights especially in cases of undue trial delay. Petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to fulfilment of conditions imposed - petition allowed.

The judgment addresses a petition filed under Section 439 Cr.P.C./483 of the Bharatiya Nagrik Suraksha Sanhita for the grant of regular bail to the petitioner, who is implicated in a case registered under Sections 22, 61, and 85 of the NDPS Act. The petitioner is accused of possessing and selling narcotic pills, specifically Etizolam salt, which constitutes a commercial quantity under the NDPS Act.

Issues Presented and Considered:

The core issues considered in this judgment are:

Whether the petitioner has been falsely implicated in the FIR.
Whether the mandatory provisions under Sections 42 and 50 of the NDPS Act have been complied with.
Whether the petitioner is entitled to bail considering the allegations and the delay in trial.
The applicability and implications of Section 37 of the NDPS Act concerning the grant of bail in cases involving commercial quantities.
The right to a speedy trial as a fundamental right under Article 21 of the Constitution.

Issue-Wise Detailed Analysis:

False Implication and Compliance with NDPS Act Provisions:

The petitioner argues false implication, claiming no recovery was made from him and that he was picked up from his residence. The petitioner also contends that Sections 42 and 50 of the NDPS Act were not complied with, as no independent witness was involved.
The Court refrains from delving into these contentions at this stage, noting that they are contentious issues to be addressed during the trial.

Delay in Trial and Right to Speedy Trial:

The petitioner highlights the delay in trial, citing various interim orders and arguing that the delay is not attributable to him.
The Court acknowledges the right to a speedy trial as part of Article 21 of the Constitution, referencing several Supreme Court judgments that emphasize the importance of this right and its implications for bail considerations.
The Court notes that the petitioner has been in custody for over 2 years and 8 months, with the trial's conclusion not foreseeable in the near future, and attributes the delay to the prosecution's failure to produce witnesses.

Application of Section 37 of the NDPS Act:

The State opposes bail, citing the commercial quantity involved and the applicability of Section 37, which sets stringent conditions for bail in such cases.
The Court balances the legislative intent to curb drug offenses with the accused's right to a fair and expeditious trial, noting that prolonged incarceration without trial completion undermines fundamental rights.
The Court finds that the undue delay in trial, not attributable to the petitioner, justifies granting bail despite the statutory embargo under Section 37.

Significant Holdings:

The Court reiterates the principle that the right to a speedy trial is integral to Article 21, and prolonged pre-trial detention without justifiable cause violates this right.
The Court emphasizes that the statutory conditions under Section 37 of the NDPS Act must be balanced against the accused's fundamental rights, especially in cases of undue trial delay.
The Court concludes that the petitioner is entitled to bail due to the inordinate delay in trial and the lack of evidence suggesting he would abscond or interfere with the prosecution.

Final Determinations:

The petition for regular bail is allowed, with the petitioner ordered to be released on bail subject to conditions ensuring he does not misuse the liberty granted or interfere with the trial process.
The Court imposes specific conditions on the petitioner, including not tampering with evidence, attending all trial dates, and not committing any offenses while on bail.
The State is granted the liberty to seek bail cancellation if the petitioner breaches any conditions.
The judgment clarifies that nothing stated should be construed as an opinion on the merits of the case, preserving the trial's integrity.

← Previous Next →