2025 (1) TMI 1466 - HC - Customs

Seeking grant of regular bail - smuggling of Heroin - seizure and sampling done by the prosecution suffers from substantial irregularities and non-adherence to Standing Order or not - substantial delay of two months in filing the application under Section 52A of the NDPS Act for the drawing of samples before the Magistrate - right to speedy trial - HELD THAT - While Section 37 of the NDPS Act is undoubtedly applicable the Applicant s fundamental right to a speedy and expeditious trial must also be given due consideration. This right serves as a safeguard against undue and oppressive incarceration ensuring that the judicial process does not inflict punishment prior to a finding of guilt. In the present case the Applicant has been in judicial custody for over 3 years and 8 months while the trial before the Special Judge (NDPS) remains at the stage of prosecution evidence. Acknowledging these delays the Court called for an updated Nominal Roll of the Applicant and a Status Report from the Trial Court detailing the reasons for the protracted trial proceedings. The updated Nominal Roll dated 07th January 2025 confirms that the Applicant has been in custody for 3 years 8 months and 18 days. This prolonged detention raises significant concerns about the balance between the rigours of Section 37 and the constitutional guarantee of a fair and timely trial. The report of the Trial Court indicates that the delay in the trial proceedings cannot be attributed to any fault of the Applicant. Instead the matter has been adjourned on multiple occasions due to the non-appearance of prosecution witnesses. The Special Judge has observed in the report that the Special Public Prosecutor for Customs appointed in this case is available only on Wednesdays Fridays and Saturdays and hearing dates are being scheduled to accommodate this limitation. Thus it cannot be said that the delay in Trial in the present case can in any way be attributed to the Applicant who has been in incarceration for a period of almost 4 years. The next date of hearing is scheduled for 19th February 2025 making it evident that the trial s conclusion is not foreseeable in the near future. The Court must strike a balance between the fundamental right to a speedy trial an integral aspect of the right to life and liberty under Article 21 of the Constitution of India and the stringent requirements of Section 37 of the NDPS Act. While the rigours of Section 37 must be meticulously applied they cannot override the constitutional mandate for timely justice. The right to life and personal liberty cannot be undermined by unwarranted delays in the judicial process particularly when such delays are neither attributable to the accused nor adequately justified by the prosecution with compelling reasons. In a recent decision of KULWINDER VERSUS STATE OF PUNJAB 2025 (1) TMI 1314 - PUNJAB AND HARYANA HIGH COURT the High Court of Punjab and Haryana held that the rigours of Section 37 of the NDPS Act must be meticulously scrutinised against the backdrop of the accused s fundamental right to a speedy trial. In the present case even though the prosecution has argued that if the Applicant is released on bail she may avoid the course of justice however this Court is empowered to put the conditions of bail in such a manner so as to ensure her presence during Trial. Conclusion - The Court granted bail to the applicant considering the prolonged detention and the constitutional guarantee of a fair and timely trial. The Applicant is directed to be released on bail subject to fulfilment of conditions imposed - bail application allowed.

Summary

The judgment addresses the application for bail under Section 439 of the Code of Criminal Procedure, 1973, read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The applicant, a Zambian national, was charged under Sections 8, 21, 23, and 29 of the NDPS Act for allegedly smuggling heroin into India. The prosecution's case is based on the recovery of 3000 grams of heroin from the applicant's luggage at IGI Airport, New Delhi, following a search conducted by customs officials.

Several issues were presented and considered in the judgment:

1. Compliance with Legal Procedures: The applicant's counsel argued that the search and seizure procedures were not followed as per the established guidelines, particularly the Standing Order No. 1/88. The counsel contended that the mixing of substances before sampling violated the procedure, casting doubt on the recovery's validity.

2. Delay in Sampling and Testing: The applicant's counsel highlighted a two-month delay in filing the application for drawing samples before the Magistrate and a 70-day delay in sending the sample to the laboratory. This delay was argued to undermine the integrity of the evidence.

3. Right to a Speedy Trial: The applicant has been in custody for over three years and eight months, with the trial progressing slowly. The counsel argued that this prolonged detention violated the applicant's fundamental right to a speedy trial under Article 21 of the Indian Constitution.

The Court's analysis on these issues included:

Compliance with Legal Procedures: The Court acknowledged the importance of following the procedure outlined in the Standing Order No. 1/88 and previous judgments, which require individual sampling from each packet of seized substances. However, the Court noted that any conclusive determination on procedural compliance should be addressed during the trial, not at the bail stage.

Delay in Sampling and Testing: The Court recognized the delay in sampling and testing but emphasized that such procedural lapses should be examined during the trial. The Court refrained from making a determination on the impact of these delays on the evidence's integrity at the bail stage.

Right to a Speedy Trial: The Court gave significant weight to the applicant's prolonged detention and the slow progress of the trial. It noted that the delay was not attributable to the applicant but rather to the non-appearance of prosecution witnesses and scheduling limitations. The Court emphasized the need to balance the stringent conditions of Section 37 of the NDPS Act with the applicant's fundamental right to a speedy trial.

Significant holdings from the judgment include:

The Court highlighted the fundamental right to a speedy trial as an integral part of the right to life and liberty under Article 21 of the Constitution. It emphasized that prolonged incarceration without justifiable cause risks transforming pre-trial detention into punitive imprisonment, which contradicts the principles of justice and equity.

The Court granted bail to the applicant, considering the prolonged detention and the constitutional guarantee of a fair and timely trial. The applicant was directed to be released on bail with conditions to ensure her presence during the trial, including cooperation with further investigations, prohibition on leaving the country without permission, and regular reporting to the investigating officer.

The judgment underscores the importance of adhering to procedural safeguards in narcotics cases and balancing statutory rigors with constitutional rights. The Court's decision to grant bail reflects a nuanced approach, considering both the legal framework and the applicant's fundamental rights.