Calcutta HC Grants Bail To NDPS Accused In Custody For 6.5 Yrs Noting Inordinate Delay In Trial, Violation Of Article 21

The Calcutta High Court last week granted bail to an NDPS Accused (in custody for six and half years) while observing that there had been inordinate delay in the trial, which resulted in the infraction of his fundamental right under Article 21 of the Constitution of India.

Importantly, the Bench of Justice Aniruddha Roy and Justice Joymalya Bagchi further observed that the restriction on bail under the NDPS Act must yield to a prayer of liberty in appropriate cases where incarceration of an under-trial constitutes a substantial portion of the maximum sentence and the completion of the trial is in the near future is the far cry.

It may be noted that the prayer for bail in the case was made not on merits but on the ground of inordinate delay in disposal of the case, claiming that the same infracted fundamental right of the speedy trial of the petitioner enshrined under Article 21 of the Constitution of India.

The Court, in its order, did note that statements of the witnesses, prima facie disclosed the involvement of the petitioner in dealing in narcotic substance above commercial quantity. However, it further considered the fact that there had been an inordinate delay in the disposal of the case, with no fault of the Accused. 

Significantly, the Court also referred to the Apex Court's decision in the case of Supreme Court Legal Aid Committee vs. Union of India (1994) 6 SCC 731, wherein it was held that in the event the under-trials have suffered detention for more than five years in relation to the NDPS cases above commercial quantity, they may be released on bail on a one-time measure.

"Although said direction may not be treated as a binding precedent under Article 141 of the Constitution of India, we may invoke a principal of parity on facts as the petitioner in the present case is incarcerating for more than six years as an undertrial while facing prosecution in a narcotic case involving commercial quantity," the Court observed.

Stressing that it was conscious of the statutory restrictions under Section 37 of the NDPS Act, the Court observed that when bail is sought due to protracted incarceration and inordinate delay infracting Article 21, the relief cannot be denied with reference to the restriction on bail put up by the Act.

Therefore, opining that the petitioner is entitled to bail due to inordinate delay in trial and infraction of fundamental right under Article 21 of the Constitution of India, the Court directed his release on bail upon furnishing a bond of Rs.10,000/- with two sureties of like amount each.

Case title - Sanjit Das @ Gosai v. The State of West Bengal

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