Calcutta High Court (Appellete Side)

Ramesh Mahato & Ors vs Unknown on 18 August, 2021

18.08.2021 CRM 4139 of 2021 Court No.28 Item No.9 (Via Video Conference) (Allowed)

Saswata In Re:- An application for bail under section 439 of the Code of Criminal Procedure filed in connection with Singur Police Station Case No. 189 of 2016 dated 02.05.2016 under Section 20(b)(ii)(c) of the NDPS Act;

And

In the matter of : Ramesh Mahato & Ors.

...Petitioners

Mr. Sandipan Ganguly, Sr. Adv.

Mr. Arindam Jana Mr. Soumojit Chatterjee ...For the Petitioners Mr. Ranabir Roy Chowdhury Mr. Rudradipta Nandy ... For the State

Mr. Y.J.Dastoor, Ld. ASG ... Intervenor

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 -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."

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