Gauhati High Court
Jitul Ali vs The Union Of India on 26 June, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/19
GAHC010262242023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./4258/2023
JITUL ALI
S/O YASIN ALI,
VILL.- JAIGURU AMINGAON,
P.O.- AMINGAON,
P.S.- CHANGSARI,
DIST.- KAMRUP (ASSAM), PIN- 781031.
VERSUS
THE UNION OF INDIA
REP. BY NARCOTIC CONTROL BUREAU.
Advocate for the Petitioner : MS. T SOM
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 26.06.2024 Heard Mr. R.P. Sarmah, learned senior counsel, assisted by Ms. T. Som, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned counsel for the respondent, i.e. Union of India, represented by the Directorate Page No.# 2/19 of Revenue Intelligence.
2) By this application filed under section 439 Cr.P.C., the petitioner, Jitul Ali, who is in custody since his arrest on 20.12.2022 in connection with NCB Crime No. 24/2022, has prayed for bail. The petitioner is being tried before the Court of the learned Special Judge, Kamrup, Amingaon in connection with NDPS Case No. 23/2023, registered under sections 8(c), 20(b)(ii)(c), 21(C), 22(c) and 29 of the NDPS Act, 1985.
3) This application is the second bail application by the petitioner. The previous bail application being B.A. No. 1519/2023 was closed by this Court by granting liberty to the petitioner to move the concerned jurisdictional Court for bail in the said case.
4) The learned senior counsel for the petitioner has submitted that till today i.e. 26.06.2024, the petitioner has been in custody for 554 days. It was also submitted that till date only 2 (two) prosecution witness have been examined, cross-examined and discharged. Hence, it is submitted that there is no possibility of an early conclusion of trial.
5) It is submitted that delay in trial has infringed the fundamental right of the petitioner under Article 21 of the Constitution of India. It is also submitted that existence of such a right has been accepted by the Supreme Court of India as well as by this Court. It was further submitted that on the ground that there is no sign of early trial, co-ordinate Bench of this Court has released under-trial prisoners considering the length of their detention. It was also submitted that even the Supreme Court of India had deprecated the long incarceration of under-trial prisoners for a long time and that on the ground that the right of the petitioner under Article 21 of the Constitution of India was Page No.# 3/19 violated and thus, the petitioner has become entitled to be released on bail
6) The learned senior counsel for the petitioner has submitted that no drugs was seized from the conscious possession of the petitioner, nor he is the owner of the house.
7) It has been submitted that the petitioner and his family members have movable and immovable property and therefore, there is no chance of absconding. Moreover, it was submitted that the petitioner is ready and willing to abide by any condition that may be imposed on grant of bail.
8) In support of his submissions, the learned senior counsel for the petitioner has cited the following decisions of the Supreme Court of India, viz.,
(i) Shariful Islam @ Sarif v. State of West Bengal, SLP (Crl.) 4173/2022 decided by 2-Judge Bench on 04.08.2022, (ii) Nitish Adhikary @ Bapan v. The State of West Bengal, SLP (Crl.) 5769/2022, decided by 2-Judge Bench on 01.08.2022 .
9) Per contra, the learned standing counsel for the respondent has opposed this application and by referring to the scanned copy of the relevant pages of the TCR, the materials available against the petitioner has been highlighted.
10) From the materials available on record, it is seen that on 17.12.2022, information was received in the office of the respondent that one Jitul Ali, the owner of House No. B/71, Railway East Colony, Amingaon had stored huge quantity of narcotic drugs and psychotropic substances in his house and that he also carries a gun. Accordingly, the personnel of Narcotic Control Bureau, Guwahati Zonal Unit, after following the prescribed procedure, had conducted a search and seizure operation in the said premises and the following narcotic drugs and psychotropic substances were seized from three accused Page No.# 4/19 persons including the petitioner, viz., (i) 153.2 kg. Ganja; (ii) 179 gm. Methamphetamine tablets; (iii) 1.020 kg. brown colour substance suspected to be heroin; and 16 bottles of Anrex-CP, codeine based cough syrup. The seized brown colour substance had tested positive for heroin. Thus, there is no doubt that the seized contraband is of commercial quantity having a huge market value.
11) Moreover, from the possession of the petitioner, one pistol (LLAMA Cal.32) with one empty magazine and one Innova car with fake number plate was seized. Moreover, one Toyota Fortuner vehicle without number plate parked in the campus was also seized.
12) As per the final complaint filed on 14.06.2023, the petitioner herein was the owner of the said vehicle which is seized from his possession. Thus, as per the complaint, the petitioner is actively involved in trafficking of contraband drugs and psychotropic substance illegally into the State.
13) The Innova Car which was seized, turned out to be having a fake number plate. The theft of said vehicle bearing Nagaland State's registration no. NL-01-CA-0194 was registered on 16.12.2022 in Dilai Police Station.
14) The learned senior counsel for the petitioner has referred to the evidence of the PWs examined so far. However, the Court is of the considered opinion that this is not an appropriate time to examine the evidence on record and to appreciate as to whether or not there was sufficient evidence so far for convicting the petitioner.
15) In the said context, it would be relevant to refer to the case of Mohd. Muslim @ Hussain v. State (NCT of Delhi), S.L.P.(Crl.) No. 915/2023 (decided by 2- Judge Bench) and reported in (2023) 0 Supreme(SC) 289, the Page No.# 5/19 Supreme Court of India had referred to the case of Union of India v. Rattan Malik, (2009) 2 SCC 624: (2009) 0 Supreme(SC) 95 . Para 14, 15 and 16 as extracted from the citation of (2009) 0 Supreme(SC) 95 is quoted below:-
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.
15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Indian Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act. Merely because, according to the Ld. Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the Ld. Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge.
16. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained.
Accordingly, the appeal is allowed and the matter is remitted back to the High Court for fresh consideration of the application filed by the respondent for suspension of sentence and for granting of bail, keeping in view the parameters of Section 37 of the NDPS Act, enumerated above. We further direct that the bail application shall be taken up for consideration only after the respondent surrenders Page No.# 6/19 to custody. The respondent is directed to surrender to custody within two weeks of the date of this order, failing which the High Court will take appropriate steps for his arrest.
16) In this case, the learned counsel for the respondent has been able to prima facie satisfy the Court that there are materials in the final complaint to suggest that the petitioner along with two other co-accused were caught with conscious possession of the commercial quantity of contraband and the petitioner is suspected to be involved in the transportation of commercial quantity of Drugs including heroin in the State.
17) In the case of Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444, a 3-Judge Bench of the Supreme Court of India had observed as follows:-
11. It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.
Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it has been held thus:-
7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the Page No.# 7/19 court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [emphasis added]
13. The expression 'reasonable ground' came up for discussion in State of Kerala & Ors. v. Rajesh and others, (2020) 12 SCC 122 and this Court has observed as below:
13. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable Page No.# 8/19 grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.
* * *
17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.
18) It would also be relevant to quote herein below the provision of Section 436A Cr.P.C.:-
436A. Maximum period for which an under trial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
19) In this case, the final complaint was filed against the petitioner and other co-accused on 14.06.2023. Vide order dated 06.11.2023, the charges Page No.# 9/19 under three heads was framed and explained to the accused persons. The PW-1 was examined on 04.12.2023 and he was cross-examined on 04.12.2023 and 11.01.2024. The PW-2 was examined on 08.02.2024, and further examined and cross-examined on 01.04.2024. The scanned copies of the TCR was received on 08.04.2024 and thus, status of progress of trial thereafter is not available.
Hence, it cannot be said that there has been an inordinate delay in commencement of trial.
20) From the materials available on record, the Court is unable to record its satisfaction that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail.
21) In the case of Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 3386, it has been held that:-
"Where undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount."
22) In the case of Shariful Islam @ Sarif (supra) and Nitish Adhikary @ Bapan (supra), bail was granted by the Supreme Court of India by considering the length of detention as mentioned in the said orders. However, the law laid down in the case of Satender Kumar Antil (supra), is not found to have been diluted in any manner. Therefore, as principles of law was not laid down in the said cases, it must be presumed that bail was granted in those two cases on the basis of the facts of the said case.
23) In the present case, the petitioner is charged of committing Page No.# 10/19 offence punishable under sections 8(c), 20(b)(ii)(c), 21(C), 22(c) and 29 of the NDPS Act, 1985. Under the said provision, the punishment prescribed is not less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs.1.00 lakh but which may extend to Rs.2.00 lakh. Therefore, following the ratio laid down in the case of Satender Kumar Antil (supra), as well as the provision of Section 436A Cr.P.C., the petitioner having been incarcerated for a period of 554 days as on 26.06.2024, has not become entitled to be released on bail.
24) In light of the judgment of the Supreme Court of India in the case of (i) Satender Kumar Antil (supra) , (ii) Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, decided by a 3-Judge Bench and (iii) Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444, decided by a 3-Judge Bench, the Court is inclined to follow the said decisions of the Supreme Court of India.
25) In so far as right to speedy trial is concerned, it cannot be said that there has been an inordinate delay in conduct of trial. In the said context, it may not be out of place to refer to the observations made by the Supreme Court of India in the case of Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra, (2013) 4 SCC 642: (2013) 0 Supreme(SC) 252 , which is as follows:-
18. At this stage, we think it apposite to advert to another aspect which is sometimes highlighted. It is quite common that a contention is canvassed in certain cases that unless there is a speedy trial, the concept of fair trial is totally crucified. Recently, in Mohd. Hussain @ Julfikar Ali v. State (Government of NCT of Delhi), (2012) 9 SCC 408, a three-Judge Bench, after referring to the pronouncements in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578: (2002) 0 Supreme(SC) 499, Zahira Habibulla H. Shekh and another v. State of Gujarat and others, (2004) 4 SCC 158, Satyajit Banerjee & Ors. v. State of West Bengal & Ors., (2005) 1 SCC 115, pointed out the subtle distinction between the two in the Page No.# 11/19 following manner:-
"40 "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end." [Emphasis added]
19. It is to be kept in mind that on one hand, the right of the accused is to have a speedy trial and on the other, the quashment of the indictment or the acquittal or refusal for sending the matter for re- trial has to be weighed, regard being had to the impact of the crime on the society and the confidence of the people in the judicial system. There cannot be a mechanical approach. From the principles laid down in many an authority of this Court, it is clear as crystal that no time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective. In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. The Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to Page No.# 12/19 extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.
20. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality. Therefore, the relief for quashing of a trial under the 1988 Act has to be considered in the above backdrop.
21. It is perceivable that delay has occurred due to dilatory tactics adopted by the accused, laxity on the part of the prosecution and faults on the part of the system, i.e., to keep the court vacant. It is also interesting to note that though there was no order directing stay of the proceedings before the trial court, yet at the instance of the accused, adjournments were sought. After the High Court clarified the position, the accused, by exhibition of inherent proclivity, sought adjournment and filed miscellaneous applications for prolonging the trial, possibly harbouring the notion that asking for adjournment is a right of the accused and filing applications is his unexceptional legal right. When we say so, we may not be understood to have said that the accused is debarred in law to file applications, but when delay is caused on the said score, he cannot advance a plea that the delay in trial has caused colossal hardship and agony warranting quashment of the entire criminal proceeding. In the present case, as has been stated earlier, the accused, as alleged, had acquired assets worth Rs.33.44 lacs. The value of the said amount at the time of launching of the prosecution has to be kept in mind. It can be stated with absolute assurance that the tendency to abuse the official position has spread like an epidemic and has shown its propensity making the collective to believe that unless bribe is given, the work may not be done. To put it differently, giving bribe, whether in cash or in kind, may become the "mantra" of the people. We may hasten to add, some citizens do protest but the said protest may not inspire others to follow the path of sacredness of boldness and sacrosanctity of courage. Many Page No.# 13/19 may try to deviate. This deviation is against the social and national interest. Thus, we are disposed to think that the balance to continue the proceeding against the accused-appellants tilts in favour of the prosecution and, hence, we are not inclined to exercise the jurisdiction under Article 32 of the Constitution to quash the proceedings. However, the learned Special Judge is directed to dispose of the trial by the end of December, 2013 positively.
26) We take note of the observations of the Supreme Court of India in the case of Hira Singh & Anr. v. Union of India & Anr., AIR 2020 SC 3255: (2020) 0 Supreme(SC) 320, decided by a 3-Judge Bench, which is extracted below:-
8.5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice.
Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted .
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27) Thus, the Court is of the considered opinion that the offence of dealing with, and/ or transporting of drugs and narcotic substances and drug peddling, which has the tendency to adversely affect the society and destroy the future of the youths, must also be treated to be a separate class of offence.
28) In the case of P. Ramachandra Rao (supra), a 7- Judge Bench of the Supreme Court of India had held as follows:-
29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused.
In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-
limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have Page No.# 15/19 become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively-by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.
29) We may also refer to the decision of the Supreme Court of India in the case of Tarun Kumar v. Assistant Director, Directorate of Enforcement, (2023) 0 Supreme(SC) 1163, wherein the Supreme Court of India, in the context of Prevention of Money Laundering Act, has observed as follows:-
20. It is also difficult to countenance the submission of learned Counsel Mr. Luthra that the investigation qua the appellant is complete and the trial of the cases likely to take long time. According to him the appellant ought not to be incarcerated indefinitely merely because the investigation is kept open with regard to the other accused. In this regard, it may be noted that the appellant has not been able to overcome the threshold stipulations contemplated in Section 45 namely he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail. It cannot be gainsaid that the burden of proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering under Section 3 of the said Act, the Court is not inclined to grant bail to the appellant.
21. The apprehension of the learned counsel for the appellant that the trial is Page No.# 16/19 likely to take long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal Choudhary & Ors. v. Union of India & Ors., 2022 SCC OnLine
929. On the application of Section 436A of the Code of Criminal Procedure, 1973, it has been categorically held therein that:-
"419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by imposing such terms and conditions so as to ensure that after release, the accused makes himself/herself available for expeditious completion of the trial."
30) The co-ordinate Bench of this Court in the case of Baiju Thakur v. Union of India, B.A. 3765/2023, decided on 13.02.2024 , had held to the effect that embargo under section 37 of the NDPS Act applied in cases where commercial quantity of drugs was seized and that liberty available under Article 21 of the Constitution of India must override the statutory embargo created under section 37 of the NDPS Act.
31) We may also refer to the decision of the Supreme Court of India in the case of Gurwinder Singh v. State of Punjab & Anr., (2024) 0 Supreme(SC) 104, where the offence for which the appellant therein was arrested was under
Unlawful Activities (Prevention) Act, 1967. In the said case, the prayer for bail was rejected as it was a serious case and the requirement was to consider the provisions of section 43(D)(5) of the said Act and it was further held that delay in trial pertaining to grave offence cannot be used for granting bail.
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32) The contraband substances recovered in this case are of commercial quantity and therefore, the petitioner will have to satisfy the twin requirement of section 37 of the NDPS Act. Unless the twin requirements are fulfilled, the petitioner will not be entitled to be allowed to go on bail. In the said context, we have refer to the decision of the Supreme Court of India in the case of Union of India v. Ajay Kumar Singh @ Pappu, (2023) 0 Supreme(SC)
285. Paragraphs 14 to 17 thereof are quoted below:-
14. This apart, it is noticed that the High Court, in passing the impugned order of bail, had lost sight of Section 37 of the NDPS Act, which, inter-alia, provides that no person accused of an offence involving commercial quantity shall be released on bail unless the twin conditions laid down therein are satisfied, namely (i) the public prosecutor has been given an opportunity to oppose the bail application and (ii) the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any such offence while on bail.
15. For the sake of convenience Section 37(1) is reproduced herein-below:
37. Offences to be cognizable and non-bailable:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):
(a) every offence punishable under this Act shall be cognizable.
(b) 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.
(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."
16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.
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17. The quantity of "ganja" recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima- facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail rather his antecedents are indicative that he is a regular offender. In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent- accused on bail.
33) Thus, in light of the discussions above, the Court is of the considered opinion that though the petitioner has spent about 554 days in custody, but as per the ratio of the case of Satender Kumar Antil (supra), Ajay Kumar Singh (supra), Gurwinder Singh (supra), Mohit Aggarwal (supra), Niranjan Hemchandra Sashittal (supra) , Hira Singh (supra), P. Ramachandra Rao (supra), Tarun Kumar (supra), and Baiju Thakur (supra), the petitioner has not become entitled to bail.
34) It would not be out of place to refer to the internet news from https://theshillongtimes.com, wherein it is reported that the police had shared data for the year 2024 till 24 th June, on International Day Against Drug Abuse and Illicit Trafficking to the effect that 120 kilograms of heroin; 16.255 kilograms of ganja; 31 kilograms of opium; 1,38,161 bottles of codeine based cough syrup; 13,03,278 tablet/capsules; 10 kilograms of morphine; 0.002 kilograms of cocaine; 978 kilograms of cannabis and 2 kilograms of methamphetamine have been seized amid intensified operations against drug traffickers during this period and cash amounting to Rs.43,94,966/- has also been seized. Moreover, 20 bighas of cannabis plantation have also been destroyed during the period. During this period, the Assam Police had arrested 2,294 persons and had registered 1462 cases in less than 6 months this year. The learned standing counsel for the respondent had submitted that in view of enormous seizure of Page No.# 19/19 narcotic drugs and psychotropic substances being seized, there is also some inadvertent delay in releasing FSL reports.
35) Thus, this application for bail is rejected. 36) Before parting with the record, it is made clear that nothing
contained in this order shall prejudice either side during trial.
JUDGE Comparing Assistant