07/04/2023
In a pathbreaking judgment on bail jurisprudence, the Supreme Court has held that undue delay in trial can be a ground to grant bail to an accused, despite the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985.
A division bench of Justices S Ravindra Bhat and Dipankar Datta, while granting bail to an undertrial prisoner arrested seven years ago for allegedly being part of a g***a-supplying gang, held:
“Grant of bail on ground of undue delay in trial cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too”
Significantly, the Court also held that only a prima facie consideration is required under Section NDPS Act, "as a plain and literal interpretation of the conditions under Section 37 would effectively exclude grant of bail altogether".
As per Section 37 of the NDPS Act, the Court can grant bail to the accused only if it 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.
This appeal had arisen out of a case involving the supply of g***a, in which four of the appellant’s co-accused were found to be in possession of more than a hundred kilograms of the prohibited substance and the appellant, one Mohd. Muslim, was subsequently implicated on the basis of the confessional statement of one of the co-accused. The court also noted that the appellant was only 23 years old at the time of his arrest. The matter travelled in appeal to the top court after the Delhi High Court rejected his application for regular bail.
Section 37 NDPS Act only requires only prima facie determination
In the judgement authored by Justice Bhat, the bench explained that while the right of an accused to be granted bail was circumscribed by the legal exceptions contained in special acts such as the NDPS Act, the standard to be considered, even within the context of Section 37 of the act, would be that of a prima facie determination.
“The court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have emphasised that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation.”
Plain and literal interpretation of Section 37 NDPS will effectively exclude the grant of bail
The bench noted that in earlier judgements, such conditions had generally been upheld on the ground that the liberty of such accused as citizens of the country, be balanced against the public interest. However, the bench acknowledged that a plain and literal interpretation of the conditions under Section 37 requiring the court to be satisfied that the accused is not guilty and would not commit any offence, would effectively exclude grant of bail altogether, “resulting in punitive detention and unsanctioned preventive detention as well”. The bench categorically stated:
“Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.”
Stringent bail conditions were enacted on the condition that trial will be expedited
The Court noted that Section 37 NDPS Act and other similar provisions with such stringent conditions for bail, such as Section 43D of the UAPA, Section 45 of the PMLA, have been upheld.
"when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly", the Court noted in this regard after referring to precedents.
Reference was also made to the decision in Union of India vs Najeeb where it was held that stringent conditions under UAPA will not fetter the right of Constitutional Courts to grant bail on the ground of violation of fundamental rights.
The judgment also referred to precedents which hold that right to speedy trial is a fundamental right.
Court refers to statistics on undertrial prisoners
Before concluding, the bench referred to some important figures revealed in a response by the union home ministry on the floor of the House. The National Crime Records Bureau had recorded that as on December 31, 2021, the bench noted, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
The court further added, “Laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. The danger of unjust imprisonment, is that inmates are at risk of ‘prisonisation’.”
There is a further danger of the prisoner turning to crime, “as a crime not only turns admirable, but the more professional the crime, the more honour is paid to the criminal”, the court held. It was also noted that incarceration had further deleterious effects – where the accused belonged to the weakest economic strata – immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. Having explained this, the bench concluded by saying:
The courts, therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”
Case Title
Mohd. Muslim v. State (NCT of Delhi) | Special Leave Petition (Criminal) No. 915 of 2023
Citation : 2023 LiveLaw (SC) 260
Headnotes
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Effect of delay in trial – Grant of bail on ground of undue delay in trial not fettered by Section 37 – Imperative of Section 436A of Code of Criminal Procedure Act – Requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods – Applicable to offences under the NDPS Act – Held, special conditions as enacted under Section 37 can only be considered within constitutional parameters when the court is reasonably satisfied on a prima facie look at the material on record that the accused is not guilty – A plain and literal would effectively exclude grant of bail altogether-Further held, appellant deserves to be enlarged on bail – Appeal allowed.
Right to speedy trial -Laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable- Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily
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