'Constitutional Duty Of State To Ensure Effective & Speedy Prosecution': Calcutta High Court Calls For Reports On Undertrials In NDPS Cases

A Division Bench of Justices Suvra Ghosh and Joymalya Bagchi was hearing the bail application of an undertrial under the NDPS Act, who had been incarcerated for over five years during the pendency of his trial (where only two witnesses had been examined till date).

Saddened by the 'chronic malady' of under-trial detention in India, the Bench called for reports on detention under the NDPS Act, whereby the accused have been in jail for five years or more.

It said,

"Under-trial detention in India is a chronic malady in the administration of criminal justice. 25th Edition of the Prison Statistics in India as per NCRB Report, 2019 shows that 69.5 per cent of prsioners in Indian jail are undertrials.

Under such circumstances and to ensure that equal justice is extended to all under trials who are incarcerated in jail for five years and more in NDPS cases, we direct the learned ASG as well as the learned Public Prosecutor, High Court, Calcutta to submit reports enumerating cases under NDPS Act where accused persons are in detention for five years or more.

Similar report shall be filed by the Registrar General of this Court also."

The matter will be taken up on January 15, 2020.

During the hearing, the question which arose for the Court's consideration was whether the restrictions imposed by Section 37 of the NDPS Act are over ridden by the operation of the directions given by the Supreme Court in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731.

In this case, the Apex Court while dealing with the issue of grant of bail on the score of inordinate delay in disposal of trials, had taken into consideration the statutory restrictions under Section 37 of the NDPS Act and had held as follows:

"We are conscious of the statutory provisions finding place in Section 37 of the Act, prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released…we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21."

The Additional Solicitor General however disputed the application of this verdict and argued that no law under Article 141 was declared therein; only "one-time direction" was issued.

He further contended that inordinate delay in trial may entitle the under trials to apply for bail only after compliance of requirements under Section 436A (Maximum period for which an undertrial prisoner can be detained) of CrPC and not otherwise.

Not convinced by this submission, the Division Bench pointed out that the Apex Court in this case, after analysing the impact of inordinate and inexplicable delay on the fundamental rights of prisoners, went on to explore the reliefs which may be made available to the incarcerated persons booked under NDPS Act.

It said,

"These directions cannot be whittled down or restricted by the operation of Section 436 A Cr.P.C. The said provision is an expression of similar anxiety of the legislature to minimize under trial detention. The directives of the Apex Court relating to bail and section 436A operate in the same field and are supplementary to one another. To read one in derogative of the other would amount to restricting the right of under-trials to bail in the face of inordinate delay in trials and would frustrate the very spirit of the aforesaid law."

On the argument that these directives were issued as a one-time measure, the Bench observed,

"We, however, note that the directives were subsequently extended to the State of West Bengal and other States vide order dated 17th April, 1995 reported in 1995(4) SCC 695. We are of the view that the aforesaid directives of the Apex Court in the matter of grant of bail due to inordinate delay are required to be taken into consideration and similar relief is to be extended to all undertrials who stand on the same footing. Liberty is an inalienable right of every individual guaranteed by our Constitution and cannot be whittled down by arbitrary categorisation."

The Bench added,

""Procedure established by law" under Article 21 cannot be viewed in isolation from the principles of "equal justice" or "equality before law" enshrined under Article 14. To achieve such universal equality it is imperative that the directives laid down by the Court in the said report be extended to all undertrials who are similarly circumstanced and are suffering protracted detention throughout the length and breadth of the country. Selective approach to personal liberty is an anathema to our constitutional scheme. Hence, it is the duty of every Court including the High Courts when faced with the question of "bail or jail" to bear in mind the beholden principles of parity and equal access to justice. Courts need to rise above petty technicalities to preserve and restore liberty to all similarly circumstanced persons. Failure to do so, would create privileged oases of liberty accessible to few and denial of freedom to most."

The Bench also referred to the Supreme Court's latest verdict on the right to personal liberty in the Arnab Goswami case, wherein it was held that the High Courts and the District Judiciaries are required to enforce the principle of "bail and not jail" in practice and not leave the court of last resort to intervene at all times.

Arnab Goswami Case : 'If This Court Does Not Interfere Today, We Are Travelling On Path Of Destruction', Says Justice Chandrachud

"The Court observed that the remedy of bail is "an expression of the humanness of the criminal justice system" and it cannot be applied in an inverted manner. If we do not extend the wholesome directives in Supreme Court Legal Aid Committee (Supra) to all under trials (in NDPS case) incarcerating in jail for more than five years, we would fail to discharge our constitutional duty to preserve personal liberty of citizens and apply the balm of humanness to those unfortunate undertrials who have failed to knock the door of the Apex Court," the Division Bench thus said.

It added,

"The principle of apportionment of responsibility in the matter of delay in trial must be counteracted in the backdrop of the constitutional duty of the State to ensure effective and speedy prosecution. The Constitution assures every individual the precious right of personal liberty and when it is forfeited by the State to ensure administration of criminal justice a heavy corresponding duty is cast on it to ensure speedy conclusion of trial minimizing under trial detention. Directives in Supreme Court Legal Aid Committee (Supra) are to be viewed from such perspective."

The Bench also clarified that the present case is not one where the accused had caused any delay. It therefore allowed the accused' bail plea upon furnishing a bond of Rs. 2,00,000/- with ten sureties of Rs. 20,000/- each, one of whom must be local, to the satisfaction of the Special NDPS Court, subject to the conditions that petitioner shall appear before the trial court on every date of hearing until further orders.

Know the Law

Section 37 of the NDPS Act prescribes twin conditions for grant of bail. It provides:

"no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless:

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

As per the provision, if the prosecutor opposes the prayer for bail, an onerous duty is cast on the accused to satisfy the Court there are reasonable grounds to believe that he is not guilty of the alleged offence and shall not commit similar offence while on bail.

It may be noted that the Apex Court has unequivocally held the expression "reasonable ground" must mean "prima facie ground".

In this backdrop the Division Bench had remarked that the ratio in Supreme Court Legal Aid Committee (Supra) "clearly curves out a separate niche for grant of bail to under trials on the score of inordinate delay in contradistinction to bail on merits. Exercise of judicial discretion in this domain stands on a completely different footing from grant of bail on merits which is circumscribed by the restrictions envisaged under section 37 of the Act."

Case Title: Sanawar Ali v. v. Union of India & Ors.

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