Alongside Embargo Of Section 37 NDPS Act, Undue Delay In Trial Can Be A Ground For Grant Of Bail: Gauhati High Court

The Gauhati High Court recently granted bail to an accused arrested for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) considering that there was no plausible ground to believe that he was guilty of the offence.

Allowing the plea of the petitioner-accused, Justice Arun Dev Choudhury observed that alongside the embargo placed by Section 37 of NDPS Act, the ground of undue delay in trial can be a ground for granting bail, inasmuch as the court is to come to the satisfaction that there is no likelihood of completion of trial in near future.

“...such ground of inordinate delay, in the considered opinion of this Court, shall depend on the facts of the each case and the cause of delay is also required to be noted down,” the bench said.

As per the prosecution case, 29.030 kg of Ganja was recovered from Agartala Deodhar Express, but no suspect was initially found. Later, the petitioner was implicated based on statement of two witnesses recorded under Section 161 CrPC.

The petitioner was arrested after 6 months of registration of the FIR. Upon filing of the chargesheet, charge under Section 20(c) of the NDPS Act was framed by the Trial Court on September 13, 2023.

Regarding confessional statement recorded under Section 67 of the NDPS Act, petitioner's counsel argued that such statement shall remain inadmissible even at the stage of consideration of bail. He placed reliance on the judgments of the Supreme Court in State v. Pallulabid Ahamed Arimutta & Others and Tofan Singh v. State of Tamil Nadu.

On the other hand, the Additional Public Prosecutor, relying upon the judgment of Apex Court in Narcotics Control Bureau v. Mohit Agarwal, argued that without arriving at a satisfaction as contemplated under Section 37 of NDPS Act, an accused cannot be enlarged on bail only on the ground of long incarceration.

While referring to the Supreme Court's decision in Satender Kumar Antil v. CBI, the court noted that grant of bail on ground of undue delay in trial cannot be said to be fettered by Section 37 of NDPS Act, inasmuch as Section 436A of CrPC was made applicable in Antil (Supra) to offences under the NDPS Act.

It was reiterated that reasonable fair and just procedure in a criminal trial is a constitutional obligation on the part of the State, and a speedy trial is also one of the dimensions of the fundamental right to life under Article 21 of the Constitution of India.

On the aspect of confessional statements under Section 67 of the NDPS Act, Justice Choudhury said,

"...in view of the ratio laid down in the case of Pallulabid Ahamed Arimutta (supra), that a confessional statement recorded under Section 67 of the NDPS Act, 1985, will remain inadmissible in the trial of an offence under the NDPS Act and therefore, such statement more particularly on the basis of the confessional statement/voluntary statement of the co-accused cannot be a ground to have a reasonable belief that the accused is guilty of the offence."

Accordingly, finding reasonable grounds to believe that the petitioner was not guilty of the offence under NDPS Act, the court granted bail.

Advocate Sarfraz Nawaz appeared for petitioner

State was represented by PP, Assam

Case Title: Anil Malakar v. The State of Assam

Case No.: Bail Appln./3887/2023

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