- (1.) LEARNED Single Judge (Hon'ble N. L. Tibrewal J.) has made a reference to the larger Bench as follows : " (1) Whether an accused facing trial of an offence punishable for a term of imprisonment, for five years and more under the NDPS Act can be released on bail by the 'special Court' or the 'high Court' on the ground of delay in the trial inspite of the limitations prescribed by S. 37 (l) (b) of the Act ? (ii) If question No. 1 is decided in the affirmative then what should be the guidelines in granting bail ?"
(2.) BEFORE we proceed to deal with the aforesaid questions, we would like to observe that the same learned Judge in another case Bherulal V. State of Rajasthan S. B. Cr. Misc. IVth Bail Application No. 4252/91 decided on January 10, 1992 had allowed bail in a case where the accused was charged of being in possession of 90 Kg. opium and he was in custody for last 21 months. But so far as the present case is concerned, it is a case where the accused petitioner is said to have been found in possession of 10. 8 Kg. opium and was in custody for more than 22 months for which the learned Judge has made a reference of the aforesaid questions to this court. Learned Judge, therefore, was granting bail on the ground of delayed trial even in the case of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act) where the quantity of opium was much more than in the present case. Therefore, in our opinion, the reference should not have been made and we could have refused to answer the same, but to put the controversy to an end we answer the two questions referred to us. We may also state that various Benches of this Court including the learned Judge who has made the reference, have been granting bail in the cases of NDPS Act on the ground of delayed trial. It was contended by the learned counsel for the petitioner that if the trial is not expedited and the accused is in custody for no fault of his own for not concluding the trial early, it can be said that he becomes entitled for being released on bail by virtue of Article 21 of the Constitution on India and Section 37 of the NDPS Act will not come in the way of the accused being released on bail. So far as the case of Narcotics Control Bureau vs. Kishanlal, (1), it was contended by the learned counsel for the petitioner that the Apex Court was not called upon and did not examine the question as to whether on the ground of delay in the trial in view of Article 21 of the Constitution an under trial prisoner will be entitled to bail or not and only the limited controversy was as to whether or not the restrictions placed on the powers of the court to grant bail in certain offences which are enshrined in Section 37 of the NDPS Act are applicable to the High Court. Learned counsel for the petitioner contended that the Apex Court said that the limitations contained in Section 37 of the NDPS Act are also applicable so far as the powers of the High Court under Sec. 439 Cr. P. C. are concerned but the Apex Court did not say that even in a case where for no fault of the accused the trial is being delayed, the accused cannot claim for being released on bail. A perusal of the aforesaid judgment in the case of Kishanlal (supra) will show that the Apex Court was not called upon and did not consider the applicability of Article 21 of the Constitution of India in so far as the grant of bail to the accused on the ground of delayed trial is concerned. We have therefore to examine. whether or not Article 21 of the Constitution will be attracted in the matters of grant of bail in offences under NDPS Act ? Let us see the scheme of the NDPS Act. The said Act no doubt makes stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The purpose of constitution of special courts is speedy trial of the offences and under Section 36 of the NDPS Act the Government has been conferred power to constitute as many special courts as may be necessary for such area as may be specified in the notification. All the offences under the NDPS Act have been made triable only by the special courts. In the famous case of Hussainara Khatoon and others V Home Secretary State of Bihar (2), Bhagwati J. , as he then was, referring to Article 21 of the Constitution of India and earlier decision in the case of Maneka Gandhi vs. Union of India in which it was held that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law, said that if a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Learned Judge further said that obviously procedure prescribed by law of depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. Learned Judge said. "no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable; fair or just' and it would fall for Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. " Learned Judge then examined the question as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of long delayed trial in violation of his fundamental right under Article 21. Learned Judge said that such a person would be entitled to be released incondition. It can, therefore, not be disputed that speedy trial is a part of furdamental right to life and liberty tander Article 21 of the Constitution we need not cite the case law on the question, if the trial is unnecessarily and unreasonably delved, the consequences are that the accused, if charge has been framed, is to be acquitted and if charges has not been framed, is to be discharged. There is catena of case law of various courts including the Apex Court. But the question is whether on the ground of delayed trial by virtue of Article 21 of the Constitution of India despite the limitations contained in Section 37 of the NDPS Act on the power of this court to release the accused on bail, the accused can be released on bail? Learned counsel contends that when on the ground of delayed trial by virtue of Article 21 of the Constitution is entitled to be unconditionally released, discharged or acquitted, as the. case may be, he will also be entitled to be released on bail. We have already referred to Section 36 of NDPS Act and even that Section clearly provides that special courts can be constituted for speedy trial. It can, therefore, be said that speedy trial, apart from Article 21 of the Constitution, is statutory right so far as NDPS Act is concerned. It is common knowledge that so far as magistracy in this State, or for that matter in any other State, is concerned, is over burdened and at places it is under staffed and therefore, it is not possible for the magistracy to deal with special type of cases and even the cases of ordinary nature remain pending and are not being disposed of early. It appears to be the reason that for the disposal of cases expeditiously the legislature in its wisdom provided for the constitution of special courts which are to be manned by the persons from amongst Sessions Judges. But even the cases under NDPS Act are not being disposed of within reasonable time and even the reports of Forensic Science Laboratory whether the substance recovered from a person is or is not a narcotic substance, are not being received for months and even years together. It can, therefore, be said that even the cases under the NDPS Act are not being disposed of expeditiously and with the ever rising cases under the NDPS Act there appears to be no possibility of speedy trial of such cases. In our opinion, the matter of bail being the matter of procedure which has to be reasonable, fair, quick and just the accused can apply for bail on the ground of delay in the trial. No Doubt it will depend on the facts of each case, quantity of the narcotic substance, and antecedents of the accused on the ground of delayed trial the accused should or should not be released on bail. It is a matter of discretion of the court which discretion has always to be exercised judiciously and not arbitrarily. Learned counsel for the respondents in support of his contention that in view of the limitations under Sec. 37 of the NDPS Act, Article 21 of the Constitution of India cannot be attracted and on the ground of delay in the trial the bail cannot be granted to an accused under NDPS Act, has referred to two decisions of the Delhi High Court. In the case of Gurbux Bhiryani Vs. J. K. Handa (4), a learned Judge of the Delhi High Court did not examine the question whether in view of Article 21 of the Constitution of India on the ground of delayed trial the accused should or should not be released on bail under the NDPS Act. It will be seen from para 5 of the aforesaid judgment that the learned Judge came to the conclusion that in fact there has been no delay on the part of the prosecution so far as the trial of the case is concerned. Referring to the case of Hussainara Khatoon (supra) the learned Judge said that the state of affairs in that case were extremely shocking and alarming. That case has no application to the facts of the present case. So far as the present case is concerned, it will be seen that the learned Judge was governed by the case of Kishanlal (supra) and we have already referred to the aforesaid case and said that the Apex Court in that case was not called upon and did not examine the question of grant of bail on the ground of delayed trial in view of Article 21 of the Constitution of India. In the case of Anil Kumar Gandhi Vs. N. C. B. and others, (5) learned Single Judge of the Delhi High Court referring to the case of Kishanlal (supra) said that it is settled law of the land that while considering the question of grant of bail to a person under NDPS Act is could be in the compliance of the provisions contained in Sec. 37 of the NDPS Act and there is a statutory bar to the bail being granted to an accused unless his case is covered by the provisions contained in Sec. 37 of that Act. So far as this Article, learned Judge did not say anything and Only observed that vires of Section 37 of the NDPS Act are already under consideration in other petition. Learned Judge observed that he is unable to accept the submission that if there is delay of more than a year in concluding the trial, the petitioner should be released on bail by virtue of Article 21 of the Constitution. It can, therefore, be said that in none of the two cases it has been said that the accused cannot claim to be released on bail on the ground that the trial is not being concluded expeditiously, though he has a right for speedy trial. Learned counsel referred to a Full Bench decision of this Court to which one of us (M. B. Sharma J.) was a member, in the case of Jai Singh and another vs. Union of India and others. In the aforesaid case this court was considering the case under Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989. Learned counsel referred to para 47 of the aforesaid judgment wherein this court said that - "art. 21 is not intended to be a constitutional limitation upon the powers , of the Legislature. The Parliament had the power to lay down that Section 438 Cr. P. C. would not apply to the cases arising out or covered by a Special Act. What the Constitution has guaranteed under Art. 21 is that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. " In our opinion the above extracted part of the aforesaid judgment is hardly applicable to the instant case. In the aforesaid case the court was dealing with the deletion of the power of the court to grant bail under Sec. 438 Cr. P. C. in relation of an offence under that Act.
(3.) IT will be seen from a perusal of Article 21 of the Constitution of India that no person shall be deprived of his life or personal liberty except according to procedure established by law. When on the ground of delayed trial by virtue of Article 21 of the Constitution, there being no provision in the Code of Criminal Procedure, an accused becomes entitled for discharge or acquittal as the case may be, speedy trial being a fundamental right of the person, we fail to understand as to why on the ground of delayed trial an accused cannot be released on bail by attracting Article 21 of the Constitution. In a bigger thing, small thing is always included. Therefore, when on the ground of delayed trial the accused can be discharged or acquitted, as the case may be, he can also claim bail, the matter of bail being procedural matter, and the accused can be, released on bail, if he is not at fault for the delay, if any, in the trial of the case. Take an example where chargesheet is filed, the report of the Forensic Science Laboratory is not received, say for one or two years, the trial does not conclude for one reason or the other for which the accused is not at fault, there is delay of two years, where the narcotic drugs may be 2,3,4 or 10 grams, can it be said that because of the limitations contained under Sec. 37 of the NDPS Act, on the ground of delayed trial the accused cannot claim to be released on bail ?. The Karnataka High Court in the case of Shivarame Gowda V State of Karnataka (7) held that the detention of an accused for an unreasonable period during the trial would attract Article 21 of the Constitution, but considering the facts of that case, the Karnataka High Court refused to release the petitioners in that case on bail and simply directed the trial court to expedite the disposal of the case. We are, therefore, of the opinion that so far as the case of Kishanlal (supra) is concerned the Apex Court was not called upon and did not examine impact of Article 21 of the Constitution of India in a case under NDPS Act so far as grant of bail on the ground of delay in the trial of the case is concerned. We are of the opinion that Article 21 of the Constitution of India will be attracted even in the matters of bail, the matters of bail being procedural matters, to regulate the right of liberty vis-a-vis custody during the pendency of the trial, it will depend on the facts and circumstances of each case as to what is the delay and whether on the ground of that delay in the trial of the case the accuseo should or should not be released on bail, the matter of bail being discretionary which discretion has to be exercised judiciously depending on the facts and circumstances of each case and the delay involved. ;