Prolonged Custody Can't Be Only Consideration For Bail: Punjab & Haryana High Court Illustrates Mitigating Factors For Bail In NDPS Cases

The Punjab & Haryana High Court has made it clear that the prolonged custody of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) cannot be the "solitary consideration" for granting bail.

Justice Pankaj Jain said, "...prolonged custody of an accused in delayed trial is definitely one of the primary considerations while considering bail plea but the same cannot be the solitary consideration. The Courts while considering the bail plea of under-trials under the NDPS Act have to be alive to certain mitigating circumstances."

The Court further illustrated the following are the mitigating circumstances which Courts should consider while granting bail under the NDPS Act:

(a) Whether petitioner has remained a Proclaimed Offender, absconder;

(b) Repeated offender under the Act cannot claim bail merely for prolonged custody. In light of provision contained under Section 37 prior/ subsequent offence committed by the accused under NDPS Act cannot be ignored;

(c) Extraordinarily heavy quantity of contraband recovered from the possession of the applicant serves as a ground for denial of bail;

(d) Nature of evidence against the applicant has to be considered i.e. an applicant who is allegedly found to be in conscious possession of the contraband cannot be treated at par with the person who has been nominated on the basis of disclosure statement made by co-accused in custody; and

(e) While considering the question of delay, the Court has to see the stage and cause of delay in trial. Where accused(s) is himself responsible for delay in trial, he cannot be allowed to claim bail enforcing his right to speedy trial.

These observations came in response to two bail pleas of persons accused under Sections 21, 22, 25, and 29 of the NDPS Act, Section 25 of the Arms Act, 1959, and Section 473 of the Indian Penal Code, at Punjab's Barnala.

According to the prosecution, the petitioners along with other co-accused were found in possession of 1 lakh tablets of 'Tramadol Hydrochloride'. It was submitted that as per the custody certificate, petitioner 1 had undergone actual custody of more than 4 years, and 5 months, and petitioner 2 was in custody since 28th August 2019.

The counsel for the petitioner argued that regardless of the merits of the case, keeping in view the delayed trial and the custody of the petitioners they would be entitled to bail during the pendency of the trial.

After considering the submissions, the Court noted that prolonged custody of an accused in a delayed trial would be one of the primary considerations while considering a bail plea, but the same cannot be the solitary consideration.

In light of the above the Court opined that "keeping in view the fact that it is not a case where the trial has not at all proceeded, instead is in the midst and considering the extraordinarily huge quantity alleged to have been recovered from the petitioners, this Court does not find it to be a case for grant of bail."

Accordingly, Justice Jain directed the Trial Court to expedite the trial and to conclude the same expeditiously, preferably within three months.

Consequently, the plea was disposed of with liberty to the petitioners to move an application for bail in case the trial was further delayed.

Case Title: Baljit Singh v. State of Punjab

Citation: 2024 LiveLaw (PH) 39