Delay in trial : grounds for bail in NDPS and other Special Acts

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Last year the Supreme Court asked the Central Government to consider enacting a separate bail law. In Satinder Antil v CBI, Supreme Court maintained how unexplained, avoidable and prolonged delay in concluding appeal or revision would be a factor for consideration of bail.

?Even in special Acts like Narcotic Drugs and Psychotropic Substances (NDPS) Act, the Supreme Court has held the need for urgency of bail. The prolonged incarceration due to exponential delay in trial infringes Article 21.

In Mohd. Muslim?v.?State (NCT of Delhi)?| Special Leave Petition (Criminal) No. 915 of 2023, the Supreme Court held that an undue delay in trial can be grounds to grant bail to a person accused of offences under?the Narcotic Drugs and Psychotropic Substances (NDPS) Act, despite Section 37 of the law putting heavy limitations on the grant of bail.

The case was regarding bail to appellant, who was in jail since October 2015 for being part of a gang which sold ganja?(marijuana). After, 8 years, there were still 34 more witnesses yet to be examined.

“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,” the bench held.

Long incarceration and delay in trials cause grave injustice , especially to those belonging to economically weaker sections. There is financial burden on families, alienation from society.

It also brings to mind how undertrials and incarcerated lose their Right to vote.

In a recent judgement the Hon’ble Supreme Court referred to concept of prisonisation that happens when an undertrial or convict stays incarcerated for long. Hon’ble Justice Bhatt had cited “?Segregation from free society and deprivation of essential rights leads to a sense of change in the new inmates, as they are assimilated into the inmate culture. This process is termed prisonization.” (Office of Justice Programs)

Recently, following this judgement, the Punjab and Haryana high court gave bail to an accused in NDPS matter. The Bench held that allegations of involvement of an accused in several drugs cases cannot be grounds to deny bail where the custody period is “very long”. Even in cases where there are multiple FIRs, which are used? as ground to obstruct securing bail, the Court observed the fact that the accused was in prison for 3 years and 9 months and only one prosecution witness was examined in full.

The Supreme Court has held in Satinder Antil vs. CBI, that bail should be granted, if there is delay in probe and trial is prolonged. That speedy trial is part of Fundamental rights of accused. A prolonged trial, appeal or revision against an accused or a convict under custody or incarceration, would be violative of Article 21. The Courts must strictly follow Section 436 A of the code on the maximum period for which an undertrial prisoner can be detained. Courts have reiterated that accused should get benefit of Section 167 (2) Cr.P.C.

The Supreme Court has previously maintained similar opinon in Unlawful Activities Act (Prevention) Act, 1967.

In Union of India v. K. A. Najeeb14 observed that: ?“Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singhv.State (NCT of Delhi), (1999) 9 SCC 252] , Babbav.State of Maharashtra, (2005) 11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.”

In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India10, this court made certain crucial observations, which have a bearing on the present case while dealing with denial of bail to those accused of offences under the NDPS Act:

“On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution.”

In Comparative law, we observe that countries ?like United States, have right to speedy trial as guaranteed by the Sixth Amendment to the US Constitution, “the accused shall enjoy the right to a?speedy and public trial” The consequent Speedy Trial Act also ensures the same, however not applicable to juvenile delinquents who have different speedy trial provisions .

The Hon’ble Supreme Court of India has a progressive outlook as far as bail is concerned, esp when there is unnecessary delay due to no fault of accused. Speedy trial is enshrined in bail jurisprudence, as observed from judgments over the years.