Ramesh Mahato & Ors Vs

A piquant situation has arisen when a plea was taken that the petitioners who are under-trial prisoners had undergone more than half of the minimum

prescribed punishment and a right has accrued to be released on bail as per the law enunciated by the Supreme Court in the case of Supreme Court

Legal Aid Committee representing Undertrial Prisoners â€"vs- Union of India & Others reported in (1994) 6 SCC 731, for the simple reason whether

it has, in fact, whittled down the rigor of Section 37 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the said Act).

The facts of the case are more or less undisputed. The petitioners have been apprehended in connection with Singur Police Station Case No. 189 of

2016 dated 02.05.2016 Section 15 of the said Act provides minimum punishment of ten years with outer cap of twenty years in addition, thereto, the

fine that may be imposed which should not be less than Rupees One Lakh but not beyond Rupees Two Lakhs, provided the commercial quantity of

the contraband is involved in the case. There is no deterrent on our part to pass an order in tune with the ratio of law decided by the Hon’ble

Supreme Court in the above noted decision, but we were refrained from doing so by intervention of Mr. Dastoor, Learned Additional Solicitor General

inviting our attention to the observations recorded in the said judgment. What is sought to be projected before us is inconsistency or discrepancies in

the body of the judgment and the directions having passed, therein.

According to Mr. Dastoor, the judgment is required to be read as a whole and not in piecemeal and if there is inconsistency in the findings returned

therein and the ultimate conclusion having derived therefrom, there is no fetter on the part of the Court to take its own decision on the basis of the

provisions of the statute as invoked on the date of the consideration.

The first point which is projected by Mr. Dastoor in relation to the aforesaid decision of the Hon’ble Supreme Court is that the law which stood on

the date of the said decision, have received remarkable changes. By the passage of time several amendments have been brought in the said statute,

which makes the provision more workable, in order to combat the menace of the drug trafficking within the country or outside. According to Mr.

Dastoor, the amendments have been brought by our Parliament by introducing Section 436A in the Code of Criminal Procedure, providing remedy to

the under-trial prisoners, if they had undergone more than half of the maximum punishment and, therefore, the observation of the Hon’ble

Supreme Court cannot be applied uniformly without noticing such changes having brought in the statute.

The proposition of law enunciated leaves no ambiguity that the under-trial prisoners if undergone half or more than the same of the minimum sentence,

there is no fetter in releasing such prisoners. Further, Mr. Dastoor says that Section 37 of the NDPS Act is a standalone provision and overrides the

general provisions of procedure and if there is a fetter being put, the Court cannot interpret in a manner which opposed to the legislative intent and the

purpose for its incorporation in the statute book.

On the other hand, Mr. Ganguly submits that the above-noted decision of the Hon’ble Supreme Court took note of the embargo which had created

Section 37 of the said Act in juxtaposing with the constitutional rights guaranteed under Article 21 of the Constitution of India read with Article 14

thereof and laid down the law which is binding on all the Courts including the High Courts under Article 141 of the Constitution of India. He further

submits that indubitably, the petitioners have undergone more than half of the minimum sentence and compliance to the mandate given in the said

decision is eminently present and there is no alternative route but to follow such mandate and allow the application for bail.

As indicated in the opening paragraph of this order/judgment, we were detained for a while to pass an order because of the intervention of Mr.

Dastoor enlightening us on the nuances of law applicable in this regard. It is beyond the cavil of doubt that Section 37 of the said Act acts as a

deterrant, obstacle and hurdle in disposing of an application for bail in favour of the accused, unless the conditions enshrined therein, are strictly

followed and/or adhered to.

It is not a complete or an absolute embargo against the grant of bail but circumscribed by certain conditions to be followed and/or complied with

before the Court embarks its journey in granting bail in favour of the accused. The Hon’ble Apex Court in the said decision focused upon the

miseries and sufferance of the under-trial prisoners, languishing in jail for a pretty long time with the hope and trust that the trial would be completed in

near future which appears to be a myth. The personal liberty enshrined under Article 21 of the Constitution of India was considered to be sacrosanct

and paramount and cannot be whittled down simply because the system does not work with promptitude and delay is the normal rule.

The Hon’ble Apex Court observed:-

“…. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases

quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak, release on bail, wich can

be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the

extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons

already alluded to, 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. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation

pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused

persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty

would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also

promises justness, fairness and reasonableness in procedural amtters. What then is the remedy? The offences under the Act are grave and, therefore,

we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the

accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been

delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to

impose. This suggestion commends to us. We were told by the learned counsel for the State of Maharashtra that additional special Courts have since

been constituted but having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the

huge pile of such cases. We, therefore, direct as under:

(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and jail for a period

which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the

offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the

said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned

with two sureties for like amount.

(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an

undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two

sureties for like amount.

(iii) Where the 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 undertrial 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.â€​

We are not unmindful of the somewhat settled propositions of law that the decision in a judgment is, what is decided on the basis of the facts of the

case and not what can be logically deduced therefrom. There is a categorical finding as quoted above that the existence of Section 37 of the NDPS

Act put hurdles in granting bail in favour of the accused, yet the constitutional right is also to be preserved and should not be done away with in a

deserving case, more particularly, when the right of a speedy trial is infringed or violated and in near future there is no possibility or likelihood of the

trial to be completed in all respects.

It was sought to be contended that in the body of the judgment, the intent of the Hon’ble Apex Court in the above-noted decision was that if the

under-trial prisoner has undergone more than half of the maximum punishment provided in the statute, the right accrued upon him to be released on

bail and not where he has undergone half of the minimum punishment provided in the statute. The disparity as noticed by us being patent on the face

of the reading of the said provision but the entire tenet of the judgment, does not suggest any such contemplation as would be manifested from the

directions being passed rendering clarity of the mind and the decisions to be taken, therein.

We do not find any difficulty in assimilating the ratio of the judgment from the aforesaid decision and there is no hesitation or ambiguity in our mind

that what is intended, therein is that if the under-trial prisoners have undergone more than half of the minimum punishment provided in the statute, a

right is accrued to pray for bail and if such right is exercised, the Court shall release them on bail despite the deter being created under Section 37 of

the said Act.

We are privileged to have an unreported decision of the co- ordinate Bench rendered in the case of In re : Sanawar Ali (CRM 9314 of 2020 dated

27.11.2020), wherein similar argument was advanced by Mr. Dastoor, appearing for the Union of India and the same had been answered in the

following words:-

“ We are conscious that delay may also be caused by an accused and it is nobody’s case that such a litigant can derive benefit out of his own

wrong. However, 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 Committed (Supra) are to be viewed from such

perspective. These directions cannot be whittled down or restricted by the operation of Section 436 A Cr.P.C. The said provision in an expression of

similar anxiety of the legislature to minimize under trial detenti9on. 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.

In this backdrop, we have gone through the records of the case and we do not find any special feature relating to contributory role of the petitioner in

the inordinate delay in trial. Absence of forensic laboratories, under staffing in those laboratories, inadequate number of prosecutors and frequent

transfer of official witnesses cause chronic delay in trial of narcotic cases. Adverting to such issues, the Apex Court in Thana Singh Vs. Central

Bureau of Narcotics, (2013) 2 SCC 590 issued various directions to ensure speedy trial. Thana Singh (Supra) quoted with approval the directives

Supreme Court Legal Aid Committee (Supra). In spite of such directions, there is little progress in the ground and the bleak picture of delay persist to

haunt under trials.

We do not find any ground to take a contrary view to what had already been taken by the Co-ordinate Bench. Even apart, the mandate of the

Hon’ble Supreme Court is explicit, elucide and clear in expounding the law on the subject and there is no other alternative but to follow the same.

We, thus hold that the moment the under-trial prisoners have undergone half or more than the minimum period of punishment provided in the statute,

they are entitled to bail despite the existence of Section 37 of the NDPS Act.

Accordingly, the application for bail of the petitioners is allowed.

Accordingly, the petitioners, namely, Ramesh Mahato, Shew Narayan Singh @ Babu and Rana Pratap Singh @ Pratap Singh shall be released on bail

upon furnishing a bond of Rs. 10,00,00/- (Rupees One Lakh) each, with five sureties of Rs. 20,000/- (Rupees Twenty Thousand only) each, one of

whom must be local, to the satisfaction of the Learned Judge, Special Court under NDPS Act, Chinurah, Hooghly subject to the condition that the

petitioners shall appear before the Trial Court on every date of hearing and shall not intimidate witnesses and/or tamper with evidence in any manner,

whatsoever and on further condition that the petitioners, while on bail shall remain within the jurisdiction of Singur Police Station until further orders

except for the purpose of attending Court proceedings and shall report to the Officer-in-charge of the concerned Police Station once in a week until

further orders. Furthermore, the petitioners shall deposit their passport, if any, with the learned Judge of the Special Court concerned and if they do not

hold a passport, he shall filed an affidavit to that effect stating their present address and phone number.

In the event the petitioners fail to do so without any justifiable cause, the Trial Court shall be at liberty to pass necessary order in accordance with law

without any further reference to this Court.

The application for bail, being CRM 4139 of 2021, is thus disposed of.