Calcutta High Court Bench comprising Justice Aniruddha Roy and Justice Joymalya Bagch in the case of Sanjit Das @ Gosai v. The State of West Bengal granted bail to an NDPS Accused who was in custody for six and half years taking into the consideration inordinate delay in the trial, which resulted in the infringement Article 21 of the Constitution of India comprising Right to life and Personal Liberty.
Background
Petitioner was in custody for six and half years and it was submitted by the learned Counsel appearing for the petitioner that There was very slow progress in the trial.
Learned Counsel for the State opposed the prayer for bail.
Order of the Court
Court took into consideration the materials on record and notes that Statements of the witnesses prima facie disclosed the involvement of the petitioner in dealing in narcotic substances above commercial quantity.
However, there was an inordinate delay in disposal of the case and No material was placed before the Court to show that the petitioner had contributed to the delay. The bench was conscious of the statutory restrictions under Section 37 of the NDPS Act. However, prayer for bail in the present case was made not on merits but on the ground of inordinate delay in disposal of the case which has the infarcted fundamental right in the speedy trial of the petitioner enshrined under
Article 21 of the Constitution of India.
Hon'ble Bench relied on the case of Supreme Court Legal Aid Commmittee vs. Union of India, wherein the Hon’ble Apex Court, inter alia, held that in the event the under-trials have suffered detention for more than five years in relation to the cases involving narcotic substance above commercial quantity, they may be released on bail on an one-time measure. Although said direction may not be treated as a binding precedent under Article 141 of the Constitution of India, we may invoke a principal of parity on facts as the petitioner in the present case is incarcerating for more than six years as an under-trial while facing prosecution in a narcotic case involving commercial quantity.While interpreting section 43D(5) of Unlawful Activities (Prevention) Act, the Court relied upon Union of India Vs. K.A. Najeeb and said that,
“The aforesaid report culls out a clear distinction between grant of bail on merits which attracts statutory restrictions as engrafted in section 43D(5) of UAPA or section 37 of the NDPS Act on one hand and bail due to protracted incarceration and inordinate delay infracting Article 21 on the other hand. While in the former the Court considers the bail on merits and its discretion is hedged by the aforesaid statutory restriction, the latter being an invocation of liberty based on breach of Article 21, cannot be denied with reference to such restrictions. Though section 37 of the NDPS Act imposes stringent restriction than section 43D(5) of UAPA in the matter of grant of bail on merits, such restriction, however, must yield to a prayer of liberty in appropriate cases where incarceration of an under-trial constitutes a substantial portion of the maximum sentence and the completion of trial is in the near future is the far cry.”
The Court said that,
“In the light of the aforesaid discussion, we are of the opinion that the petitioner is entitled to bail due to inordinate delay in trial and infraction of fundamental right under Article 21 of the Constitution of India”.
In this regard the Court referred to Sanar Ali vs. State of West Bengal and the petitioner be released on bail upon furnishing a bond of Rs.10,000/- (Rupees Ten Thousand Only) with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act at Barasat, North 24-Parganas, on condition that the petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence
in any manner whatsoever and on further conditions that the petitioner shall remain within the jurisdiction of North 24-Parganas except for the purpose of attending trial proceedings and shall report to the concerned officer-in-charge once in a month until further orders.
The Court in its order added that In the event the petitioner failed to appear before the trial court and does not co-operate with the trial without justifiable cause, the trial court shall be at liberty to cancel his bail automatically without reference to this court.
Case Details
Case Title: Sanjit Das @ Gosai v. The State of West Bengal
Bench: Justice Aniruddha Roy and Justice Joymalya Bagch
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