In a Bail Application, when the contention arose that the accused cannot be granted bail because of section 37 of the NDPS Act, the High Court of Himachal Pradesh referred to several latest judgments of the Supreme Court and held that for offenses under NDPS Act, bail can be granted of the ground that the accused has been incarcerated for prolonged durations.
Brief Facts:
The petitioner is an accused under sections 20 and 29 of the Narcotics Drugs and Psychotropic Substances, Act (NDPS).
On 24.02.2021, Accused Tek Ram was on the wheel and Bobby Sharma was the occupant of the passenger seat of the car, 1.790 kg of charas was found, the case was registered and both of these persons were arrested. It was later discovered that these people were transporting the contraband at the instance of a person named Hitesh and the petitioner and they were waiting on the state border of Himachal Pradesh, and then Hitesh was also arrested by the police.
Petitioner through the current petition has prayed for a grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. It is the petitioner’s case that he is custody for more than two years and the trial has not yet concluded and is progressing at a snail’s pace. The contention of bail has been opposed by the opposite party on the ground that section 37 of the NDPS Act has application in the current case and merely on the ground of delay in the conclusion of trial, the petitioner cannot be released on bail.
Observations of the Court:
The Hon’ble Court noted the facts of the cases and noted that the fetters placed by section 37 of the NDPS Act have played an instrumental role in the denial of the right of bail to the petitioner to date. Now the question that has arisen in front of the court is whether the provision of section 37 be construed to have the same efficacy throughout the pendency of the trial, notwithstanding the period of custody of the accused, especially when it is weighed against his fundamental right to have expeditious disposal of trial. It was then noted that the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of the NDPS Act in perpetuity. It was further noted how the supreme court had allowed bail on the ground that the accused involved in commercial quantity under NDPS Act have been incarcerated for prolonged durations. For the same Supreme Court’s judgment in the case of Nitish Adhikary @ Bapan Vs.The State of West Bengal, Mahmood Kurdeya Vs. Narcotic Control Bureau and several other cases have been referred. In addition to this several judgments of the co-ordinate bench of the current court have also been referred where the accused in NDPS Case has been granted bail on the ground of prolonged pre-trial incarceration.
With respect to the current case, it was noted that the trial is not likely to be concluded in the near future and there is nothing on record to suggest that the delay is attributable to the petitioner.
The Decision of the Court:
The Bail petition was allowed and the petitioner was ordered to be released on bail.
Case Title: Vikas@Vicky v. State of Himachal Pradesh
Coram: Justice Satyen Vaidya
Case No.: Cr.MP(M) No.: 906 of 2023
Advocates for the Petitioners: Mr. Ajit Sharma, Advocate.
Advocate for the Respondents:
Mr. Mohinder Zharaick, Additional Advocate General.
HC Ashok Kumar No. 75, P.S. Swarghat in person along with the record.
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