Undue Delay In Completion Of Trial, Eligible For Bail Due To Prolonged Incarceration: Gauhati HC Releases Man Accused Of Possessing Methamphetamine

The single-judge bench of Justice Mridul Kumar Kalita observed:

“…..this Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioner is long enough, he 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 petitioner under Section Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37 of the NDPS Act, 1985.”

The petitioner-accused was detained on October 14, 2020, along with two other co-accused from 6 Mile, Guwahati, on the acquisition of possessing a total of 2.146 kg of methamphetamine tablet which is a commercial quantity.

A case was registered under Sections 8(C), 22 (C) and 29 of the NDPS Act 1985 on March 10, 2022, against the petitioner and two other co-accused persons.

The Counsel appearing for the petitioner submitted that when the Trial Court failed to culminate the trial as within six months of the date of a High Court order in which it was observed that the Trial Court shall plan a calendar of hearings to ensure early disposal of the case, preferably within six months, failing which the Trial Court shall consider the release of the said accused on bail, the co-accused, and thus, one of the co-accused was granted bail by the Trial Court by its order dated November 18, 2023.

It was the contention of the petitioner that even after seven months of the release of the said co-accused on bail on the grounds of prolonged incarceration, the petitioner, who is similarly situated to the accused who was already released on bail, is languishing behind bars with the uncertainty of early culmination of trial. Thus, it was argued that the petitioner is entitled to bail on the grounds of prolonged incarceration only.

The petitioner's Counsel submitted that though the embargo of Section 37 of the NDPS Act is mandatory in nature but the Supreme Court in catena of cases has observed that in case of inordinate delay in trial, the embargo is lifted and it gives weigh to the fundamental right of the accused which is guaranteed under Article 21 of the Constitution of India. Reliance was placed upon the judgment of Apex Court in Rabi Prakashv. State of Orissa 2023 LiveLaw (SC) 533.

On the other hand, the Standing Counsel, NCB opposed the bail to the petitioner on the grounds that there is sufficient incriminating material against the petitioner for possessing a commercial quantity of methamphetamine tablets, and hence the embargo of Section 37 of the NDPS Act is applicable.

It was further argued that the prolonged incarceration may be one of the grounds for releasing the accused on bail however it has not been laid down in anywhere as to how long incarceration would be long enough to override the embargo of Section 37 of the NDPS Act.

It was contended that the petitioner's period of detention may not be considered as long enough to override the embargo of Section 37 of the NDPS Act as he has not completed half of the period of the maximum sentence prescribed for the offence.

The Court noted that the petitioner has been detained behind bars for last more than 3 years and 8 months and the trial is yet to culminate.

The Court relied upon the judgment of the Supreme Court in Mohd Muslim @ Hussain v. State (NCT of Delhi) 2023 SCC Online SC 352 in which it was laid down 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.

“………this Court is of the considered opinion that in the instant case also, the long incarceration of the present petitioner outweighs the embargo of Section 37 of the NDPS, Act 1985 and the petitioner is, therefore, entitled to get bail on the ground of prolonged incarceration only,” the Court noted.

Thus, the Court granted bail to the petitioner-accused with certain conditions, on Rs. 1,00,000/- with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the Additional Sessions Judge, Kamrup (M).

Case Title: Yahiya Khan v. The Union of India

Case No.: Bail Appln./190/2024