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Synopsis

The Supreme Court has recently held that grant of bail on ground of undue delay in trial, would not be fettered by Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

".., it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable", a bench of Justices Ravindra Bhat and Dipankar Datta has held.

These observations were made by the bench while granting bail to one Hussain who argued that his application for bail ought not to have been rejected by the High Court, considering that he had suffered incarceration for over 7 years and the criminal trial had hardly reached the half-way mark.

Hussain was accused of committing offences punishable under Sections 20, 25 and 29 of the NDPS Act. His application under Section 439 read with Section 482 of the Criminal Procedure Code (‘CrPC’), seeking grant of regular bail, before the Delhi High Court, was denied by the impugned judgment.

Notably, at the time of his arrest, the appellant was 23 years and was not found in possession of the narcotic drug; other co-accused were.

While analyzing Section 37 of the NDPS Act which deals with offences being cognizable and non-bailable under the Act, the Division bench relied on the most recent decision of Satender Kumar Antil v. Central Bureau of Investigation wherein prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act and the court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply.

Noting that Hussain had been in custody for over 7 years and 4 months, whereas trial was progressing at a snail’s pace: 30 witnesses have been examined, whereas 34 more have to be examined, the Court said,

"The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin."

The bench opined that under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence.

" ....the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act..", the bench said while holding that grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too.

Case Title: MOHD MUSLIM @ HUSSAIN vs. STATE (NCT OF DELHI)