Kuldeep Singh and Anr v. The Union of India

ORDER Date : 27-06-2024

¶1Heard Mr. Y. S. Mannan, learned counsel for the petitioners. Also heard Mr. S. C. Keyal, learned Standing Counsel, DRI.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973, has been filed by the petitioners, namely, 1. Kuldeep Singh and 2. Sandeep Kumar, who are detained behind the bars since 04.06.2018 (for more than last six years) in connection with NDPS Case No. 98/2018 corresponding to DRI Case No. 05 /CL /NDPS /GANJA /DRI /GZU /2018 -19 under Section 20(b)

(ii)(c)/29 of the NDPS Act, 1985 which is pending in the Court of learned Additional Sessions Judge No. 3, Kamrup(M).

¶3The gist of the accusation in this case is that one Sujata Dam, Intelligence Officer of DRI, Guwahati had filed a written complaint before the Court of learned Special Judge, Guwahati inter alia, alleging that on receipt of an information through reliable sources that one 10 wheeler truck bearing Registration No. UP-84F-9985 loaded with huge consignment of Ganja which is traveling from Tripura is expected to reach Khanapara in the afternoon of

03.06.2018, accordingly a search team was conducted and on 03.06.2018 at about 1700 Hrs., the aforesaid truck was intercepted and the occupants of the said truck that who were the driver and the handyman (the above name petitioners) were apprehended and on search 80 packages of Ganja was weighing about 801.420 Kgs were found from the said truck.

¶4Learned counsel for the petitioners has submitted that the petitioners Page No.# 3/11 are detained behind the bars since the date of their arrest i.e., on 04.06.2018 and have completed more than six years behind the bars, however, till date out of 11 listed witnesses only four have been examined. Learned counsel for the petitioners has also submitted that the testimony of witnesses who have already been examined is also contradictory and there is no possibility of conviction in this case.

¶5The learned counsel for the petitioners has submitted that though the embargo of Section 37 of the NDPS Act, 1985 is mandatory in nature, however, in view of the observations made by the Supreme Court in a number of cases, in case of prolonged incarceration and inordinate delay in trial, the embargo of Section 37 of the NDPS Act, 1985 is lifted and it gives way to the right of the accused guaranteed under Article 21 of the Constitution of India.

¶6The learned counsel for the petitioners has also submitted that though in the present case commercial quantity of contraband has been involved, however, as both the petitioners have been detained behind the bars for more than six years and till date only four of the eleven witnesses have been examined and there is no hope of an early culmination of trial.

¶7The Fundamental Rights of the petitioners guaranteed under Article 21 of the Constitution of India, under such circumstances, overrides the embargo of Section 37 of the NDPS Act, 1985.

¶8The learned counsel for the petitioners has cited a ruling of the Apex Court in the case of "Rabi Prakash Vs. State of Orissa" reported in 2023 SCC Online SC 1109, wherein it has been observed by the Apex Court that "The prolonged incarceration, generally militates against the most precious Page No.# 4/11 fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

¶9The learned counsel for the petitioners has also cited the rulings of the Apex Court in (i) "Shariful Islam @ Sarif Vs. State of West Bengal" (order dated

04.08.2022 in SLP Criminal No. 4173/2022), (ii) "Dheeraj Kumar Shukla Vs. State of Uttar Pradesh" [order dated 25.10.2023 passed in Special Leave to Appeal (Criminal) No. 6690/2022], (iii) "Anjan Nath V. The State Of Assam" [Order dated

17.10.2023 passed in Special Leave to Appeal (Criminal) No. 9860/2023], (iv) "Nitesh Adhikari Vs. State of West Bengal"(Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022) and (v) "Md. Salman Hanif Shaikh Vs. State of Gujarat" (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), wherein the petitioners (who were facing trial for possessing commercial quantity of contraband). However, due to the prolonged incarceration in all the above mentioned cases, the petitioners were allowed to go on bail. Therefore, on the same principle, the learned counsel for the petitioners has also submitted that in the instant case also the petitioners, who have been languishing behind the bars for more than 6 years, may be allowed to go on bail.

¶10On the other hand, learned Standing Counsel, NCB has vehemently opposed the prayer for grant of bail to the present petitioners on the ground that the quantity of contraband seized from the above named petitioners is commercial quantity, hence, the embargo of Section 37 of the NDPS Act is applicable in the instant case.

¶11The learned Standing Counsel, NCB has also submitted that what is binding is not the conclusion arrived at by the higher Court, but the underlying Page No.# 5/11 principles, on the basis of which that conclusion has been reached. He has submitted that the rulings of the Apex Court cited by the learned counsel for the petitioners does not indicate any ratio-decidendi on the basis of which the petitioners in the said cases were allowed to go on bail.

¶12The learned Standing Counsel, NCB has also submitted that in case of an heinous offence like that of offences under the NDPS Act, 1985, the object of enacting NDPS Act, 1985 as well as legislative mandate of the said Act should be strictly followed and no accused should be released on bail unless mandatory conditions provided under Section 37 of the NDPS Act, 1985 are fulfilled. To substantiate his submission, the learned Standing Counsel, NCB has cited a ruling of the Supreme Court of India in the case of "Union of India Vs. Ram Samujh", reported in (1999) 9 SCC 429. The learned Standing Counsel, NCB has also cited a ruling of the Apex Court in the case of "State By (NCB) Bangaluru Vs. Pallulabid Ahmed Arimutta" reported in (2022) 12 SCC 633.

¶13The learned Standing Counsel, NCB has also submitted that in a criminal trial it is not possible to lay down a fixed period for conclusion of trial as the conclusion of criminal trial depends on many factors like nature of offence, the number of accused, the number of witnesses, the workload in the particular court, the means of communication and several other circumstances which are to be kept in mind and if the delay is not for any wrong on the prosecution side the accused should not get benefit of any such systemic delay. The learned Standing Counsel, NCB has cited a ruling of the Apex Court in the case of "High Court Bar Association, Allahabad Vs. The State Of Uttar Pradesh" reported in 2024 Legal Eagle (SC) 198, to buttress his submission.

¶14The learned Standing Counsel, NCB has also submitted that in the case Page No.# 6/11 of Satender Kumar Antil Vs. CBI reported in 2022 (10) SCC 51, the Apex Court has observed that Section 436 A of the Code of Criminal Procedure, 1973, which relates to the maximum period for which an under trial prisoner can be detained behind the bars, is also applicable to offences under NDPS Act, 1985. It is submitted by the learned Standing Counsel, NCB that as Section 436 A of the Code of Criminal Procedure, 1973, provides that if an under trial prisoner had undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law he shall be released by the Court on his personal bond with or without surety, hence, for an offence under NDPS Act, 1985 an under trial prisoner may be detained behind the bars till he completes one half of the maximum period of imprisonment specified for that offence. It is submitted by the learned Standing Counsel, NCB that unless the under trial prisoner completes the said period, he may not be released on bail merely on the ground of prolonged incarceration as embargo of Section 37 of the NDPS Act, 1985 would be applicable in such case.

¶15I have considered the submissions made by the learned counsel for both the sides and have perused the materials available on record including the scanned copy of the NDPS Case No. 98/2018 which was called for in connection with the this case.

¶16In the case of "Hussainara Khatoon & Ors. –Vs-Home Secretary, State of Bihar" reported in "(1980) 1 SCC 98" the Apex Court has observed that the procedure prescribed by law for depriving a person of his personal liberty cannot be regarded as reasonable, fair or just unless that procedure ensures a speedy trial for determination of guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21 of the Constitution of India. Page No.# 7/11

¶17Though, Section 37 of the NDPS Act, 1985 provides for stringent provision for grant of bail, however, Section 36 (1) of the NDPS Act, 1985 also mandates the Government to constitute as many special courts as necessary for the purpose of providing speedy trial of offences under the NDPS Act, 1985. If speedy trial is not provided to an incarcerated accused, it will certainly have a negative impact on the rigours of Section 37 of the NDPS Act, 1985.

¶18The Supreme Court of India in "Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" reported in "2023 SCC Online SC 352" has observed that "grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985".

¶19The Apex Court in "Rabi Prakash Vs. State of Orissa" (supra), wherein it has been observed by the Apex Court that "The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

¶20In view of the aforementioned observations of the Apex Court, the submissions made by the learned Standing Counsel, NCB to the effect that only because the Section 436A of the Code of Criminal Procedure, 1973 is applicable to offence under the NDPS Act, 1985, therefore, the accused may not be released on bail unless he has completed one half of the maximum period of imprisonment specified for that offence, does not appears to be a reasonable argument.

¶21In the instant case also the petitioners above named petitioners have been detained behind the bars for more than six years and only four out of eleven witnesses have been examined till date and there is no hope of Page No.# 8/11 culmination early culmination of the pending trial against the above named petitioners.

¶22This Court is of the considered opinion that for whatsoever reasons, if inordinate delay has been caused and if it is not due to any fault of the petitioners, then to keep him under incarceration for a long period on one hand, and to continue to cause delay in culmination of the trial on the other hand would certainly be infringing his fundamental rights guaranteed under Article 21 of the Constitution of India and under such circumstances, the petitioners would be entitled to get bail.

¶23In this regard the observations made by the Apex Court in the case of "Satender Kumar Antil –Vs-CBI reported in "2022 (10) SCC 51" are relevant, same is quoted here in below: "49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the noncompliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be Page No.# 9/11 violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own."

¶24In view of the observations made by the Apex Court, this Court is of the considered opinion that if, under the facts and circumstances of a case, the Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioners is long enough, they would be entitled to get bail on the ground of such prolonged incarceration, as in such a case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioners under Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985.

¶25It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an accused facing charges for possession of commercial quantity of contraband only on the ground of prolonged incarceration in "Shariful Islam @ Sarif Vs. State of West Bengal" (supra), wherein the accused was detained behind bars for one year and six months.

¶26In "Nitesh Adhikari Vs. State of West Bengal" (supra), Hon'ble Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months.

¶27Similarly in "Md. Salman Hanif Shaikh Vs. State of Gujarat" (supra), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years.

¶28In "Chitta Biswas Alias Subha Vs. The State Of West Bengal" (Order dated

07.02.2020 passed in SLP Criminal No. 8823/2019), the Apex Court granted bail to the petitioner, who was facing a trial for possessing a commercial quantity of Page No.# 10/11 contraband on the ground of prolonged incarceration of 1 year 6 month.

¶29It appears on perusal of the rulings cited by learned counsel for the petitioners that in all the cases cited by the petitioners, though commercial quantity of contraband was involved and apparently the embargo of Section 37 of the NDPS Act, 1985 would have been applicable in those cases, however, only because of the fact of the prolonged incarceration of the petitioners, the Apex Court allowed the petitioners to go on bail.

¶30As in the instant case also the present petitioners are detained behind the bars for more than six years and the trial is yet to culminate, hence, in view of the facts and circumstances of this case and in light of the observations made by the Apex Court in the rulings cited herein above wherein it has dealt with the question of long incarceration of similarly situated petitioners who were before the Apex Court, this Court is of considered opinion that that the incarceration already undergone by the above named petitioners in this case is long enough to outweigh the embargo of Section 37 of the NDPS Act, 1985 and, therefore both the above named petitioners are entitled to get bail on the ground of prolonged incarceration only.

¶31In view of the above, the above named petitioners, namely, 1. Kuldeep Singh and 2. Sandeep Kumar are allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand) each with two sureties of like amount (one of whom should be a resident within the State of Assam), subject to satisfaction of Additional Sessions Judge No. 3, Kamrup(M) with following conditions:- i. That the petitioners shall cooperate in the trial of NDPS Case No. 98/2018, which is pending in the Court of learned Additional Sessions Judge No. 3, Kamrup(M); ii. That the petitioners shall appear before the Trial Court as Page No.# 11/11 and when so required by the Trial Court; iii. That the petitioners shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioners; iv. That the petitioners shall provide their contact details including photocopies of their Aadhar Card or Driving License or PAN card and mobile number as well as other contact details before the Trial Court; v. That the petitioners shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioners shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioners shall not commit any similar offence while on bail.

¶32With the above observation, this bail application is accordingly disposed of

JUDGE Comparing Assistant

PageoNo.#o1/11 GAHC010072902024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oBailoAppln./1119/2024o KULDEEPoSINGHoANDoANR.o S/OoSHRIoSURENDRAoSINGHo R/OoVILL-oCHITAUA,o P.O.oSAHARA,o P.S.oBICHHAWANo DIST.oMAINPURI,oUTTARoPRADESH,oPINoCODE-205267 2:oSANDEEPoKUMAR oS/OoSHRIoKRIPALoSINGHo R/OoVILL-oBHARATPURAo P.O.oJAKHAUA oP.S.oKURAWALIo DIST.oMAINPURI oUTTARoPRADESH oPINoCODE-o20526o VERSUSo THEoUNIONoOFoINDIAo REPRESENTEDoBYoTHEoSTANDINGoCOUNSEL,oDRI,oGOVT.oOFoINDIA. AdvocateoforotheoPetitionerooooo:oMR.oYoSoMANNANo AdvocateoforotheoRespondento:oSC,oDRIoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/11 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA