JEEWAN MONDAL Vs STATE NCT OF DELHI -Judgment by Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 19th December, 2022
Pronounced on: 04th January, 2023
+ BAIL APPLN. 3925/2020
JEEWAN MONDAL ….. Petitioner
Through: Mr. Kanhaiya Singhal, Ms. Priyal Garg, Mr. Prasanna, Mr. Chetan Bhardwaj, Mr. Udit Bakshi,
Mr. Ajay Kumar and Mr. Jasmeet Singh, Advs.
versus
STATE NCT OF DELHI ….. Respondent
Through: Mr. Ritesh Kumar Bahri, APP.
CORAM:
HON’BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. By this petition, the petitioner is seeking regular bail in FIR No.39/2016 registered under Sections 20/29 NDPS Act (Narcotic Drugs & Psychotropic Substances Act, 1985) P.S. Special Cell (SB).
2. The facts, as per the FIR, are that on 25th June, 2016 a secret information was received that two persons viz., Babu Roy @ Chhotu and Jeewan Mondal (petitioner herein) have reached Delhi from Odisha in a white Maruti Car bearing West Bengal number alongwith a huge consignment of Ganja (a narcotics substance) and was to be delivered to Hafiz in the Yamuna Khadar of Jaitpur Delhi at about 8 AM. As per the complainant SI Ashok Kumar, the said information was reduced into writing and was conveyed to the DCP who gave directions to conduct the raid. Further, this information was lodged vide DD No. 13 dated 25th June, 2016 at 5:15 AM and a copy of the same was submitted before the Inspector-In-Charge in compliance of Section 42 NDPS Act. A raiding party was organized under the supervision of Inspector Kailash Singh Bisht and at about 7:00 AM they reached Pusta Road towards Jaitpur from Kalindi Kunj, Delhi where around 7.30 AM, one Maruti car i.e. Swift Dzire bearing registration number DL 3CCC 7032 came from Kalindi Kunj side and then moved towards Yamuna Khadar behind a Vento Car. Both the cars stopped and one person alighted from the Vento car and two from the Swift Dzire car. The secret informer identified both the persons from the Swift Dzire as Babu Roy and Jeewan Mondal while the one from Vento Car as Hafiz. The raiding team cordoned the three persons resulting in a scuffle and subsequently, all three men were apprehended and interrogated. Notices under Section 50 NDPS Act were prepared in Hindi and served upon the three accused persons. Upon search of Mohd. Hafiz a grey colour polythene bag was seized containing 16 kg of ganja from which sample was taken. Search of Babu Rao @ Chhotu also revealed one grey colour polythene bag containing ganja weighing 16 kg from which sample was taken. Search of Jeevan Mondal also revealed one grey colour polythene bag containing ganja weighing 16 kg from which sample was taken. Further, search of the Vento car belonging to Hafiz led to the discovery of 3 more packets of 16 kg each of ganja. A search of Swift Dzire belonging to Babu Rao, 4 grey colour polythene bags containing ganja weighing 16 kg each were recovered. The accused were arrested and the petitioner is in custody since 25th June, 2016. Charge sheet was filed on 19th December, 2016 citing as many as 34 witnesses whereafter a supplementary charge sheet was filed citing additional 4 witnesses.
3. Learned counsel for the petitioner has contended that the petitioner is in custody for the last more than 5 � years and so far only 14 witnesses have been examined while 24 witnesses are left to be examined. It is further contended that 16 kg of ganja was recovered from the petitioner which, as per the NDPS Act, is 4 kg less than �commercial quantity�. He further contended that there was no compliance of Section 50 of the NDPS Act in the present case but essentially stressed that the constitutional rights of the petitioner under Article 21 which guarantees speedy trial were being violated by this delayed trial since the petitioner has already undergone more than 5 � years of incarceration, which was more than half of the sentence that may be visited on the petitioner assuming that he would be convicted.
4. Learned counsel for the petitioner has also supplied copies of order-sheets of the learned Trial Court starting from 9th October 2018 to 13th April 2022 which showed that out of 32 hearing dates which were scheduled before the learned Trial Court, on at least 11 dates the prosecution had sought adjournment, witnesses had been fully or partially examined on 13 dates and on about 6 hearings, the matter was listed for hearing through video conferencing but due to administrative instructions, the matter could not be proceeded. It was evident, he contented, at least from the traversal of these order sheets of 4 years, that the delay was not caused due to the petitioner or his counsel.
5. Learned counsel further contended that there was non-compliance of Section 42 of the NDPS Act despite the fact that it was alleged by the prosecution that information had been forwarded to the DCP concerned showed that it was done on 25th June, 2016 however a bare reading of cross examination of PW-2 SI Dheeraj would reveal that the said documents were received only on 27th June, 2016 at about 5:00 PM which was contradictory to his examination in chief. Notwithstanding the arguments on merits and non compliance of various provisions of NDPS Act, learned counsel sought to rely upon the issue of delayed trial and the constitutional rights guaranteed despite the stringent provisions of the NDPS Act. In support he relied upon the following decisions: Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731; Sanawar Ali, 2020 SCC OnLine Cal 3261; Anil Kumar v. State, 2022 SCC OnLine Del 778; Sarvan Kumar v. State (NCT of Delhi), 2022 SCC OnLine Del 2079; Satender Kumar Antil v. CBI, (2022) 10 SCC 51; Ejike Jonas Orji v. Narcotics Control Bureau, 2022 SCC OnLine Del 1770; Union of India v. K.A. Najeeb, (2021) 3 SCC 713; Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590; Raju v. State of W.B., (2018) 9 SCC 708; Rakesh Kumar Bhola v. Directorate of Revenue, 2022 SCC OnLine Del 3502.
6. Responding to the contentions raised by the learned counsel for the petitioner, learned APP stated that charges in the matter have already been framed and the same have not been challenged by the petitioner and therefore being a binding order, the issue of compliance of Section 42 and 50 of the NDPS Act stands prima facie satisfied. In any event, as regards compliances under Sections 42 and 50 of the NDPS Act, details had been provided in the status report which would show that the information was conveyed to the senior officer on 26th June, 2016 itself through proper channel and a dispatch register entry was made on the same date. However, since it was a Saturday, the information was sent to the SO Office on 27th June, 2016. The witness PW-2 being relied upon by the petitioner was posted in the SO Office who received the dak on 27th June, 2016. It was further contended that even an application under Section 311 Cr.P.C. had been moved by the prosecution for the re-examination. As regards compliance of other provisions were concerned, they were subject matter of trial and were not to be adverted to at this point of time. As regards the delay caused in the trial, learned APP contended that the explanation to section 436A Cr.P.C. provided an exclusion where delay caused by the accused, the same ought to be accounted for. In this case there were special circumstances of 2 years spent during Covid pandemic. To substantiate the contention that the delay in the trial would not be a ground in itself for granting relief to the petitioner under Section 37 NDPS Act, learned APP relied upon the decisions of the Hon�ble Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal, (2022) SCC OnLine SC 891 and Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705.
7. Learned counsel for the petitioner rebutted the submissions of the learned APP by stating that the decision of the Hon�ble Supreme Court in Mohit Aggarwal (supra) was distinguishable on facts since it involved recovery of 50,000 tablets of Tramadol and the accused had undergone custody only for around 1 year. Further, it was contended that the decision in Mohit Aggarwal (supra) did not take into account the decisions of the Hon�ble Supreme Court itself in Supreme Court Legal Aid Committee (supra) or in Satender Kumar Antil (supra), which was delivered 8 days prior to the decision in Mohit Aggarwal (supra), and therefore, the Hon�ble Supreme Court would not have had the benefit of the decision in Satender Kumar Antil (supra). Learned counsel for the petitioner further pointed out the decision of this Court in Rakesh Kumar Bhola v. Directorate of Revenue (supra) where a Single Judge of this Court has considered the decision of Mohit Aggarwal (supra) and has held that rigors of Section 37 of the NDPS Act would not come in the way while dealing an application for bail moved by the undertrial prisoner who has been in custody for more than half of the minimum sentence prescribed.
8. It would be apposite before addressing the contentions of the parties to first advert to various decisions which have been referred to. For ease of reference, relevant extracts from each of these decisions are also supplied as under.
8.1. Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 73. Dealing with a petition under Article 32 of the Constitution of India by the Supreme Court Legal Aid Society regarding delay in disposal of cases under the NDPS Act and its impact on undertrials, the Hon�ble Supreme Court passed the following directions for cases in which accused are in jail and trials were delayed, on the anvil of Article 21 and 14 of the Constitution of India, notwithstanding Section 37 of the NDPS Act:
�15. �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 fine, such an undertrial shall be released on bail if he has been in 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.
(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order.
The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:
(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;
(ii) the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;
(iii) the benefit of the direction in clauses (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses;
(iv) in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;
(v) the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;
(vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount;
(vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and
(viii) after the release of the undertrial accused pursuant to this order, the cases of those undertrials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in Section 309 of the Code.�
(emphasis supplied)
8.2. In Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590, the Hon�ble Supreme Court noted that trial in NDPS cases took exceptional time due to unavailability of prosecution witnesses which are usually officers of various different agencies:
�12. The Narcotics Control Board also pointed out that since operations for prevention of crimes related to narcotic drugs and substances demands coordination of several different agencies viz. Central Bureau of Narcotics (CBN), Narcotics Control Bureau (NCB), Department of Revenue Intelligence (DRI), Department of Customs and Central Excise, State Law Enforcement Agency, State Excise Agency to name a few, procuring attendance of different officers of these agencies becomes difficult. On the completion of investigation for instance, investigating officers return to their parent organisations and are thus, often unavailable as prosecution witnesses. In the light of the recording of such official evidence, we direct the courts concerned to make most of Section 293 of the Code of Criminal Procedure, 1973 and save time by taking evidence from official witnesses in the form of affidavits.�
8.3. Further in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 603, the Hon�ble Supreme Court again noted that:
�4.�Time and again, this Court has emphasised the need for speedy trial, particularly when the release of an undertrial on bail is restricted under the provisions of the statute, like in the present case under Section 37 of the NDPS Act. While considering the question of grant of bail to an accused facing trial under the NDPS Act in�Supreme Court Legal Aid Committee (Representing Undertrial Prisoners)�v.�Union of India�[(1994) 6 SCC 731 : 1995 SCC (Cri) 39] this Court had observed that though 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 of the Constitution would receive a jolt. It was further observed that after the accused person has 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. We regret to note that despite it all, there has not been visible improvement on this front.
5.� Bearing in mind these observations and having regard to the fact that in the present case the appellant has been in custody for more than 12 years and seemingly there being no prospect of the conclusion of trial in the near future, we are of the opinion that it is a fit case where he deserves to be admitted to bail forthwith.�
(emphasis supplied)
8.4. In Union of India v. K.A. Najeeb, (2021) 3 SCC 713 the Hon�ble Supreme Court affirmed the decision in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) and held that statutory restrictions per se do not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution of India. In context of the NDPS Act is stated:
�19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc.�
8.5. More recently in Satender Kumar Antil v. CBI, (2022) 10 SCC 51, the Hon�ble Supreme Court while dealing with issues of bail and undertrials, adverted to Section 436A CrPC stated as under:
�64. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond with or without sureties. The word �shall� clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the Public Prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that �bail is the rule and jail is an exception� coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21��
(emphasis supplied)
Further dealing with various categories of cases, the Hon�ble Supreme Court dealt with inter alia cases under special acts including NDPS as Category C and stated as under:
�86. Now we shall come to Category C. We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.�
(emphasis supplied)
8.6. The High Court of Calcutta In Re: Sanawar Ali, 2020 SCC OnLine Cal 3261 has followed the directives in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) and granted bail.
�13. In light of the aforesaid discussion, we are of the view that the directives in Supreme Court Legal Aid Committee (Supra) applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution.�
(emphasis supplied)
8.7. This Court as well, inter alia in Anil Kumar v. State, 2022 SCC OnLine Del 778 where 2.210 kg of charas/hashish was recovered and the accused had remained in custody for almost eight years, granted bail.
�16. Therefore, fair, just and reasonable procedure is implicit in Article 21 and it creates a right in the accused to be tried speedily. This Court has consistently observed that while Courts must remain cognizant of the deleterious impact of drugs on society, it is also important to keep in mind that deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution. In the instant case, the Petitioner has been incarcerated for almost eight years now, i.e. since 27.03.2014, for an offence that is punishable with a minimum imprisonment of ten years. This is an egregious violation of an accused’s right to personal liberty and right to speedy trial as, in the off-chance that the Petitioner is acquitted, it would entail an irretrievable loss of eight years of his life that cannot be compensated. Whether or not the Petitioner played an active role in the commission of the offence of drug trafficking and supply is a matter of trial and cannot justify the prolonged incarceration of the Petitioner.
17. In light of the above, applying the law that has been laid down by the Supreme Court in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) and flowing from Section 37 of the NDPS Act which governs the powers pertaining to grant of bail, this Court is of the opinion that the instant case is fit for grant of bail��
(emphasis supplied)
8.8. Bail was also granted by this Court in Sarvan Kumar v. State (NCT of Delhi), 2022 SCC OnLine Del 2079 where 21 kg of ganja was recovered and the accused had remained in custody for more than seven years and 11 out of 24 witnesses were examined.
�12. The rigors of Section 37 of the NDPS Act would thus not come in the way while dealing with a bail application moved by an undertrial who has remained in custody for more than half of the minimum sentence prescribed.�
(emphasis supplied)
8.9. Bail was also granted by this Court in Ejike Jonas Orji v. Narcotics Control Bureau, 2022 SCC OnLine Del 1770 where 265 grams of heroin was recovered and the accused had remained in custody for almost 8 years and 14 out of 20 witnesses were examined.
�25. For the reasons aforesaid, as the applicant has been in custody for eight years already, six PWs are yet to be examined, and on the consideration of the various factors noted above, including the provision of Section 37 of the Act, as interpreted in the above judgments of the Supreme Court and this Court, I am of the view that the applicant is entitled to be released on bail.�
8.10. This Court, more recently, in Rakesh Kumar Bhola v. Directorate of Revenue, 2022 SCC OnLine Del 3502 where 275 kg of Pseudoephedrine Hydrochloride had been fraudulently diverted and the accused had remained in custody for more than six years and 9 out of 53 witnesses were examined, granted bail and noted that:
�18. The rigors of Section 37 of the NDPS Act would thus not come in the way while dealing with an application for bail moved by an undertrial prisoner who has remained in custody for more than half of the minimum sentence prescribed.�
8.11. The State relied upon a decision of the Hon�ble Supreme Court denying bail in Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891 where 6.64 lakhs tablets of different psychotropic substances including Tramadol weighing around 328.82 kg and other psychotropic substances were recovered from co-accused on accused�s instance, and the accused had remained in custody for a period of 1 year 3 months. The Hon�ble Supreme Court observed:
�18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.�
(emphasis supplied)
8.12. Also in Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705, as relied upon by the State, the Hon�ble Supreme Court held:
�6. Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of CrPC regarding bail, in our view, it cannot be held that the High Court’s powers to grant bail under Section 439 CrPC are not subject to the limitation mentioned under Section 37 of NDPS Act. The non-obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439 CrPC and Section 37 of the NDPS Act, Section 37 prevails�
�As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of CrPC should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.�
(emphasis supplied)
9. What can be culled out and is evident from these decisions listed above is that the Hon�ble Supreme Court has in 1994 in Supreme Court Legal Aid Committee (supra) enunciated certain principles/directives which inter alia provide that if an undertrial is charged for an offence under the NDPS Act punishable and the trial is delayed and the accused has already undergone almost half of the sentence prescribed (or the minimum if there is a range provided) then he should be entitled for being released on bail subject to conditions. Directive (iii), for example, provides that where minimum imprisonment of ten years and a minimum fine of Rupees one lakh is prescribed, such an undertrial shall be released on bail if he has been in jail for not less than five years on the condition that he furnishes bail in the sum of Rupees one lakh with two sureties for like amount. This principle is further buttressed by another decision of the Hon�ble Supreme Court in Satender Kumar Antil (supra) where it was held dealing with cases of category �C� (Special Acts) that provisions contained in Sections 436A Cr.P.C. would apply to Special Acts as well in the absence of any specific provision. It was specifically stated by the Hon�ble Supreme Court that �the rigor as provided under section 37 NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person�. The jurisprudential crux of this principle being enunciated by the Hon�ble Supreme Court is that �bail is the rule and jail is an exception� that there is a principle of presumption of innocence and the core intendment being Article 21 of the Constitution of India which guarantees right to personal liberty and right to speedy trial. In this context, the decisions in Kishan Lal (supra) of the Hon�ble Supreme Court would not have relevance since the principles enunciated in Supreme Court Legal Aid Committee (supra) and endorsed in Satender Kumar Antil (supra) would hold ground. These principles have been followed inter alia by this Court in Anil Kumar v. State (supra), Sarvan Kumar v. State (supra), Ejike Jonas Orji v. Narcotics Control Bureau (supra).
10. Adverting now to the decision by the Hon�ble Supreme Court in Mohit Aggarwal (supra) where it was held that that the length of custody in itself cannot be a persuasive ground for relief under Section 37 NDPS Act. It is noticed on a reading of the decision of the Hon�ble Supreme Court in Mohit Aggarwal (supra) that the facts in the case involved an extremely huge amount of 6.64 lakhs tablets of different psychotropic substances including Tramadol weighing around 328.82 kg and other psychotropic substances and the accused had remained in custody for a period of 1 year 3 months. It is evident that the facts in Mohit Aggarwal (supra) did not involve a case of NDPS accused in custody for at least half the minimum sentence prescribed for the offence and therefore, the Hon�ble Supreme Court in that decision did not traverse through the principles enunciated in the decision of Supreme Court Legal Aid Committee (supra). Nor probably it had the benefit of the decision of the Hon�ble Supreme Court in Satender Kumar Antil (supra) which had been pronounced 8 days prior. The decision in Mohit Aggarwal (supra) was limited to the appreciation of the merits of the case in the rubric of Section 37 NDPS Act for the purpose of dealing with application of bail. Therefore, probably the observation of this Court in Rakesh Kumar Bhola (supra) that when dealing with an application for bail moved by an undertrial prisoner who had remained in custody for more than half the minimum sentence, the rigors of Section 37 of NDPS Act would not come in the way.
11. In the facts of this case, it is evident that the petitioner was allegedly found in possession of 16 kg of ganja. The offence for which he is sought to be charged is for the 16 kg of ganja as per the charge sheet. The recovery of 64 kg of ganja was from the boot and rear seat of the car that did not belong to the petitioner. However, if 16 kg is considered then it is less that commercial quantity (which is prescribed to be 20 kg for ganja). In any event for this the sentence, if convicted, would be for a period extending upto 10 years and fine which may extend upto Rs. 1 lakh. Even if a larger quantity, which is commercial, is attributed to him (recovery from the car), the minimum punishment for which the petitioner would be convicted in case found guilty, would be for 10 years and minimum fine of Rs.1 lakh. Therefore, without adverting to the merits of the matter, it is evident that the petitioner has spent more than half period of the maximum (or in case of commercial quantity, a minimum) sentence of 10 years plus fine of Rs.1 lakh, and that the trial is expected to be prolonged and not conclude in the near future. Therefore, the principles enunciated by the Hon�ble Supreme Court would directly apply to the facts of this case and would entitle the petitioner to bail subject to certain conditions.
12. Consequently, the petitioner is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 1,00, 000 with two sureties of the like amount subject to the satisfaction of the Learned Trial Court, further subject to the following conditions:
i) Petitioner will not leave the country without prior permission of the Learned Trial Court and will deposit his passport with the Learned Trial Court.
ii) Petitioner shall provide his address to the Learned Trial Court by way of an affidavit and revise the same in the event of any change in residential address.
iii) Petitioner shall appear before the Learned Trial Court as and when the matter is taken up for hearing.
iv) Petitioner shall provide all his mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. The mobile location shall be kept on at all times.
v) Petitioner shall report through video call to the IO between 10:00-11:00 a.m. every week on a Monday.
vi) Petitioner shall also report to the Police Station which has jurisdiction over his residential address, to register his presence, in the first week of every month.
vii) Petitioner shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, or tamper with the evidence of the case.
Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.
13. Copy of the order be sent to the Jail Superintendent for information and necessary compliance.
14. Accordingly, the petition is disposed of. All pending applications, if any, are rendered infructuous.
15. Order be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
JANUARY 04, 2023/sm
2023/DHC/000038
BAIL APPLN. 3925/2020 Page 1 of 19