New Delhi: In a significant order passed on March 28, the Supreme Court held that an undue delay in trial can be grounds to grant bail to a person accused of offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, despite Section 37 of the law putting heavy limitations on the grant of bail.
According to LiveLaw, a bench of Justices S. Ravindra Bhat and Dipankar Datta made this observation while granting bail to a person who has been in jail since October 2015 for being part of a gang which sells ganja (marijuana).
“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,” the bench said.
Section 37 of the NDPS Act holds that a court can grant bail to an accused only if it is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail.
On this condition, the court held that only a prima facie consideration is required “as a plain and literal interpretation of the conditions under Section 37 would effectively exclude grant of bail altogether”, according to the order.
The case was related to the seizure of more than 100 kg of ganja. While the co-accused were found in possession of the banned substance, the appellant, Mohd Muslim, was implicated based on a confessional statement.
While his co-accused got bail, the Delhi high court rejected Mohd Muslim’s bail. His lawyer said that the period of long incarceration entitled the appellant to bail. There were 34 more witnesses to be examined and little or no progress has been made since the high court’s direction to expedite the trial, the lawyer argued.
Meanwhile, the additional solicitor general of India Vikramjit Banerjee said though Mohd Muslim was not caught in possession of ganja, “he appears to be the mastermind behind the supply and delivery of narcotic substances from Chhattisgarh”.
The top court said:
“The court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have emphasised that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation.”
The bench said that while the top court has upheld provisions like Section 37 of the NDPS Act which curtail the right of an accused to secure bail, it was on the condition that the trial is concluded expeditiously.
If a “plain and literal interpretation” of the conditions under Section 37 would effectively exclude grant of bail altogether, “resulting in punitive detention and unsanctioned preventive detention as well”.
The bench added:
“Therefore, 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 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.”
According to LiveLaw, the bench noted that of the more than 5.5 lakh prisoners held in jails, nearly 4.27 lakh were undertrial prisoners. “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. Jails are overcrowded and their living conditions, more often than not, appalling. The danger of unjust imprisonment, is that inmates are at risk of ‘prisonisation’,” the court said.
“The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily,” the order says.
Justice Ravindra Bhat. In the background is the Supreme Court. Photos: File and LiveLaw
Same day, same court but different outcome
The verdict, authored by Justice Bhat, could act as an important precedent but the “polyvocal” nature of the top court came forward strikingly when on the same day – March 28 – another bench of the Supreme Court came to the opposite conclusion.
As observers of the court have argued, the top court is “better thought of not as a single ‘court’, but as many different courts of equal authority, who may often speak with different – or even opposed – voices on the same issue”. This has led to jurisprudence which is inconsistent.
The second bench of the Supreme Court set aside an Allahabad high court order granting bail to a person accused of offences under the NDPS Act. The bench of Justice V. Ramasubramanian and Justice Pankaj Mithal said that the high court did not record that the accused “is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail”, according to Verdictum.
“In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail,” the court said.
This case was also about a person who is accused of being the ‘kingpin’ of a ganja trade ring. However, the accused received bail within two years after he was put behind bars.
It was pertinent for the high court to consider the twin conditions laid down under Section 37 of the NDPS Act while considering the bail application, the bench said.
The Allahabad high court granted bail to Ajay Kumar Singh on the ground of the larger mandate of Article 21 – right to personal liberty – of the constitution.
In this case too, Kumar’s lawyers had argued that his co-accused had got bail. However, the government argued that those two were “not the main accused, but the vicarious agents of the respondent-accused, who is the main person in drug trafficking and was involved in the above illegal transactions”. The court accepted this argument, adding that the co-accused getting bail “does not seem to be a good and sufficient reason for granting bail”.
