In the present case, a raid on receival of secret information by the police was conducted which led to the arrest of four accused alleged to have possession of 180 kilograms of ganja. On the basis of the confession of one of the accused, the present appellant Mohd. Muslim was arrested for committing of offence punishable under Section 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The application of the appellant for grant of bail under Section 439 read with Section 482 of the Code of Criminal Procedure, was denied by the Delhi High Court. As a result, the present appeal before the Supreme Court has arisen.

Issue

1. On what ground shall the Court determine the phrase ‘not guilty’ under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 when all the evidence is not before the Court?
2. Whether the bail can be granted to the accused, taking into consideration the rigid conditions in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985?

Rule

1. Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is the provision for the punishment of offence of cultivation of cannabis plant with rigorous imprisonment for a term which may extend to ten years and fine which may extend to one lakh rupees and for production, manufacture, possession, sell, purchase, transport, inter-State import or export or usage of cannabis plant, the punishment shall be divided in three categories on the quantity of cannabis plant as:
2. for small quantity – rigorous imprisonment for a term which may extend to one years or fine which may extend to ten thousand or both
3. for less than commercial quantity – rigorous imprisonment for a term which may extend to ten years and fine which extend to one lakh

iii. for commercial quantity – rigorous imprisonment for a term not less than ten years and extend up to twenty years and fine not less than ten lakhs and may extend up to two lakhs

2. Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) deals with punishment for the act of allowing his/her premises or such other place to be used knowingly for committing of offence punishable under the said Act.
3. Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) deals with punishment for act of abetment and criminal conspiracy irrespective of fact such offence is in consequence of such abetment or criminal conspiracy and notwithstanding Section 116 of Indian Penal Code, 1860 and shall be punished.
4. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) states that for a cognizable offence and offence under the meaning of Section 19 or Section 24 or Section 27A and for commercial quantity be provided bail unless the following conditions are met:
5. opportunity for opposing of release application is provided to the Public Prosecutor
6. upon opposition of release application by Public Prosecutor, the Court on reasonable grounds is satisfied to believe the person to be not guilty or will not likely commit any offence on being granted bail
7. Under Section 439 of the Code of Criminal Procedure, 1973, the High Court and Sessions Court are granted special powers with regards to bail of a person accused of an offence and in custody.

Analysis

The learned counsel on behalf of appellant submitted that the appellant twenty-three at the instance of arrest, has suffered from imprisonment for a period of seven years and the trial has barely reached half-way with little progress. The learned Additional Solicitor General of India opposed the bail on the ground of public interest of protection against the sale and use of drugs and for purpose of Section 37 for the prevention of reoccurrence of such illegal dealings.

The Court with reference of Vaman Narain Ghiya v. State of Rajasthan[1] highlighted the Right of the accused to enjoy freedom on the ground of presumption of innocence and social interest. With regards to first issue for determination of whether the accused is guilty or not, the Court laid down the ‘prima facie determination’ of the materials on record to be manner for satisfaction of the provision within Section 37 of the NDPS Act. And further added any other manner of interpretation to be denial of bail to the accused person under Section 37 of the NDPS Act. For the reason behind such manner, the Court observed that, ‘a plain and literal interpretation of the conditions under Section 37 would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned prevention detention as well’.

The Court observed that the trial has been unreasonably delayed and the appellant has been imprisoned for period of seven year and four months and thirty-four witnesses are yet to be examined. The Court in light of this delay and importance of application of the provision under Section 436A to the offences punishable under NDPS Act observed that application for grant of bail on the ground of undue delay of the trial cannot be limited by the provision of Section 37 of NDPS Act. The Court held that in the present case, the appellant is entitled to be granted bail. In addition, the Court observed that even though rigid conditions for bail are deemed to be necessary for public interest, injustice is caused on part of person accused if trials are delayed.

Conclusion

In the landmark decision, observing the deleterious effects of imprisonment and undue delay in the trial on the accused, the Supreme Court allowed the appeal and granted the bail to the appellant. The Court balancing the public interest and right of accused, held undue delay in trial to be ground for granting bail for the offences punishable under NDPA Act.

[1] Special Leave Petition (Criminal) No. 915 of 2023

[2] [2008] 17 SCR 369: (2009) 2 SCC 281