Balaji @ Madras Balaji vs State

K.Murali Shankar, J

The petitioner/A.16, who is facing a case for the offences punishable under Sections 8(c),20(b)(ii)(c) and 29(1) of Narcotic Drugs and Psychotropic Substances Act, in C.C.No.120 of 2021 on the file of the learned 2nd Additional District Judge, Special Court for NDPS Cases, Madurai, in Crime No.1388 of 2020, on the file of the respondent police, seeks bail.

The case of the prosecution is that on 05.09.2020 at about 03.00 p.m., when the respondent police was on regular surveillance duty in the area of the first accused, near the house of the first accused, the first accused and 15 members were found with white color gunny bags and on seeing the police, they fled away from the spot and that the police chased and arrested the accused 1 to 3 and seized the contraband of 22 kgs of Ganja from them.

The petitioner's case is that the petitioner is innocent and he has not committed any offence as alleged by the prosecution, that there was no recovery from the petitioner, that the petitioner was falsely implicated only on the basis of the alleged confession statement taken from the co-accused and that the petitioner is not having any previous cases for similar offence.

The learned Additional Public Prosecutor appearing for the respondent would submit that there are totally 16 accused and that the contraband seized is of commercial quantity. He would further submit that when the petitioner was in judicial custody in other case, he was formally arrested on 17.12.2020 and on production before the concerned Court, he was remanded to judicial custody so far as the present case is concerned, that the petitioner is having 12 previous cases, in which, one case is under the NDPS Act and that the case in Crime No.2685 of 2020 came to be registered on 01.12.2020 against the petitioner and another for allegedly possessing 3 kgs of Ganjga and the petitioner was arrested and the contraband was recovered from him.

The learned counsel for the petitioner would submit that some of the co-accused were already granted bail by this Court, that there are several cantena of judgments to show that Section 37 of the NDPS Act embargo could not apply when the reasonable grounds have been putforth they can be released on bail and that the petitioner is in judicial custody for more than 900 days. He would further submit that the petitioner was implicated only on the basis of the confession alleged to have been taken from the co-accused, that there was no recovery from the petitioner and that the prosecution has not produced any evidence or material to show that the petitioner was very much available at the scene of occurrence.

No doubt, the petitioner's earlier two applications in Crl.O.P(MD)No.842 of 2022 and Crl.O.P.(MD)No.3383 of 2023 were ordered to be dismissed by this Court vide orders, dated 04.03.2022 and 27.03.2023 respectively.

7.When the matter was taken up for hearing on 18.07.2023, considering the submissions made by the learned counsel for the petitioner and the learned Additional Public Prosecutor that this Court has already directed the trial Court to complete the trial within a period of four months vide order dated 16.03.2022 in Crl.O.P.(MD)No.1420 of 2022, but the trial has not been completed so far, directed the Registry to call for a report from the concerned Court with regard to the present stage of the case and the reasons for not complying with the order of this Court.

In pursuance of the directions of this Court, the learned II Additional Special Court for Exclusive trial of cases under NDPS Act, Madurai, has submitted a report dated 20.07.2023 stating that two months time was granted for the disposal of the case in C.C.No.120 of 2021 on its file; that the fourth accused who was released on bail did not appear before the Court for very long time and on surrender before the said Court, he was remanded to judicial custody; that the accused/A5, A6 and A9 are being produced on PT warrants; that the accused 2, 3, 10 and 13 have engaged their counsel recently on 09.06.2023; that P.W.1 was examined in chief and the said witness was cross examined by the counsel for the accused 5, 6, 7, 9 and 14 and stand posted for cross examination on behalf of other accused and that therefore, the trial of the case could not be completed within time and he has already submitted a requisition seeking extension of time.

9.It is not in dispute that the petitioner/ accused was implicated only on the basis of confession alleged to have been taken from the co-accused and that there was no recovery from the petitioner. In the absence of any material to show that the petitioner was very much available at the scene of occurrence, this Court in earlier order dated 27.03.2023, has specifically observed that there are reasonable grounds for believing that the petitioner is not guilty of such offence.

As already pointed out, according to the prosecution, the petitioner is having 12 pending cases, which includes one case under the NDPS Act and that the contraband in that case was recovered from the petitioner. It is evident from the F.I.R.,registered in Crime No.2685 of 2020 against two persons including the petitioner herein for the offence under Sections 8(c), 20(b)(ii)(B), 29(1) of NDPS Act, wherein it has been alleged that 3 kgs of ganja was recovered from the accused including the petitioner.

Considering the above, this Court cannot record a finding that the petitioner is not likely to commit any such offence, after coming out on bail.

The learned counsel for the petitioner has relied on the recent decision of this Court in Mohd. Muslim alias Hussain Vs. State (NCT of Delhi) reported in 2023 SCC Online SC 352, wherein the Hon'ble Apex Court has held that grant of bail on ground of undue delay in trial cannot said to be fettered by Section 37 of NDPS Act and the relevant passages are extracted herein.

“19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.

Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.”

13.In the said decision's case the appellant/accused therein was charged for the offence under Sections 20, 25 and 29 of NDPS Act. It is pertinent to note that the appellant therein has been in custody for over seven years and four months and he was aged 23 years at the time of remand. The Hon'ble Apex Court, by referring to the decision of the Hon'ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation reported in 2022 10 SCC 51, considering the prolonged incarceration and inordinate delay in proceeding with the trial, has expressed that Section 436-A (which requires inter alia, the accused to be enlarged on bail if the trial is not concluded within specified periods) of Cr.P.C, would apply, has granted bail to the appellant therein.

14.In the case on hand, as already pointed out, the petitioner, who was in judicial custody in connection with the other case, was arrested formally on 17.12.2020 and on production before the concerned Court, he was remanded to judicial custody.

It is settled law that the twin conditions contemplated under Section 37 of NDPS Act are to be considered as conjunctive and not alternative.

Considering the above, this Court has no hesitation to hold that since the petitioner has failed to satisfy the second condition contemplated under Section 37 of the NDPS Act, this Court has no hesitation to hold that the petitioner is not entitled to get bail at this point of time.

In the result, this Criminal Original Petition is dismissed.