MOHD MUSLIM @ HUSSAIN versus STATE (NCT OF DELHI on 28 March 2023

[2023] 3 S.C.R. 697

MOHD MUSLIM @ HUSSAIN

v.

STATE (NCT OF DELHI)

(Criminal Appeal No(s). 943 of 2023)

MARCH 28, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37– Code of Criminal Procedure, 1973 – s.436A – Appellant accusedof committing offences punishable under NDPS Act has been incustody since 2015, if entitled to bail – Held: Recovery of ganjawas made from the four co-accused – Appellant was arrested at thebehest, and on the statement of one of the co-accused – Prosecutionrelied on that statement, as well as the confessional statement of theappellant – In addition, it also relied on the bank statements of oneof the co-accused who allegedly disclosed that money used to betransferred to the appellant – As against this, the prosecution hasnot recovered anything else from the appellant – The allegationthat he is a mastermind is not backed by any evidence of extensivedealing with narcotics, which would reasonably have surfaced –Further, two co-accused persons have been enlarged on bail –Appellant has been in custody for over 7 years and 4 months –Progress of the trial has been at a snail’s pace wherein 30 witnesseshave been examined, and 34 more have to be examined – Grant ofbail on ground of undue delay in trial, cannot be said to be fetteredby s.37, given the imperative of s.436A which is applicable tooffences under the NDPS Act too – Thus, on facts, appellant enlargedon bail subject to such conditions as the trial court may impose –Bail.

Bail – Offences under Special Acts – Duty of Courts –Discussed.

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37– Special conditions under – Interpretation of.

Words and Phrases – ‘Not guilty’ – Discussed – Bail.

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698SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1.1 The recovery of ganja was made on 28.09.2015,from the four co-accused, including ‘NE’. The present appellantwas arrested at the behest, and on the statement of this ‘NE’.The prosecution has relied on that statement, as well as theBconfessional statement of the present appellant; in addition, ithas relied on the bank statements of ‘VS’ @ ‘B’, who allegedlydisclosed that money used to be transferred to the appellant. Asagainst this, the prosecution has not recovered anything else fromthe appellant; its allegation that he is a mastermind, is not backedby any evidence of extensive dealing with narcotics, which wouldCreasonably have surfaced. The prosecution has not showninvolvement of the appellant, in any other case. Furthermore, hewas apparently 23 years of age, at the time of his arrest. It is anundisputed fact that two co-accused persons (who also, were notpresent at the time of raid and from whom no contraband wasDrecovered) - the accused (‘VS’ @ ‘B’) who allegedly transferredmoney to the appellant’s account as payment for the ganja, andthe accused (‘NY’ @ ‘TP’) from whom the original insurancepapers and registration certificate of the car from whichcontraband was seized, was recovered - have both been enlargedon bail. The appellant has been in custody for over 7 years and 4Emonths. The progress of the trial has been at a snail’s pace: 30witnesses have been examined, whereas 34 more have to beexamined. [Para 17][709-E; 710-A-D]

1.2 The conditions which courts have to be cognizant ofare that there are reasonable grounds for believing that theFaccused is “not guilty of such offence” and that he is not likely tocommit any offence while on bail. What is meant by “not guilty”when all the evidence is not before the court? It can only be aprima facie determination. That places the court’s discretionwithin a very narrow margin. Given the mandate of the generalGlaw on bails (Sections 436, 437 and 439, CrPC) which classifyoffences based on their gravity, and instruct that certain seriouscrimes have to be dealt with differently while considering bailapplications, the additional condition that the court should besatisfied that the accused (who is in law presumed to be innocent)is not guilty, has to be interpreted reasonably. Further theH

classification of offences under Special Acts (NDPS Act, etc.),which apply over and above the ordinary bail conditions requiredto be assessed by courts, require that the court records itssatisfaction that the accused might not be guilty of the offenceand that upon release, they are not likely to commit any offence.These two conditions have the effect of overshadowing otherconditions. In cases where bail is sought, the court assesses thematerial on record such as the nature of the offence, likelihoodof the accused co-operating with the investigation, not fleeingfrom justice: even in serious offences like murder, kidnapping,rape, etc. On the other hand, the court in these cases under suchspecial Acts, have to address itself principally on two facts: likelyguilt of the accused and the likelihood of them not committingany offence upon release. This court has generally upheld suchconditions on the ground that liberty of such citizens have to - incases when accused of offences enacted under special laws – bebalanced against the public interest. A plain and literalinterpretation of the conditions under Section 37 (i.e., that Courtshould be satisfied that the accused is not guilty and would notcommit any offence) would effectively exclude grant of bailaltogether, resulting in punitive detention and unsanctionedpreventive detention as well. Therefore, the only manner in whichsuch special conditions as enacted under Section 37 can beconsidered within constitutional parameters is where the courtis reasonably satisfied on a prima facie look at the material onrecord (whenever the bail application is made) that the accusedis not guilty. Any other interpretation, would result in completedenial of the bail to a person accused of offences such as thoseenacted under Section 37 of the NDPS Act. The standard to beconsidered therefore, is one, where the court would look at thematerial in a broad manner, and reasonably see whether theaccused’s guilt may be proved. The satisfaction which courts areexpected to record, i.e., that the accused may not be guilty, isonly prima facie, based on a reasonable reading, which does notcall for meticulous examination of the materials collected duringinvestigation. Grant of bail on ground of undue delay in trial, cannotbe said to be fettered by Section 37 of the Act, given the imperativeof Section 436A which is applicable to offences under the NDPSAct too. In the facts of this case, the appellant deserves to be AB

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Aenlarged on bail. The appellant is directed to be enlarged on bail,subject to such conditions as the trial court may impose. [Paras18-20, 24][710-E-G; 711-A-H; 713-A]

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Kartar Singh v. State of Punjab (1994) 3 SCC 569 :[1994] 2 SCR 375 – followed.

Supreme Court Legal Aid Committee (RepresentingUndertrial Prisoners) v. Union of India (1994) 6 SCC731 : [1994] Supp. 4 SCR 386; Shaheen WelfareAssociation v. Union of India (1996) 2 SCC 616 : [1996]2 SCR 1123; Satender Kumar Antil v. Central Bureauof Investigation (2022) 10 SCC 51; Union of India v.K. A. Najeeb (2021) 3 SCC 713 : [2021] 2 SCR 443;Vijay Madanlal Chaudhary v. Union of India 2022 SCCOnline SC 929:[2022] 6 SCR 382 – relied on.

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DHussainara Khatoon v. Home Secy., State of Bihar(1980) 1 SCC 81 : [1979] 3 SCR 1276; KadraPahadiya & Ors. v. State of Bihar (1981) 3 SCC 671;Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC225 : [1991] 3 Suppl. SCR 325; State of MadhyaPradesh v. Kajad (2001) 7 SCC 673 : [2001] Supp. 2ESCR 617; Vaman Narain Ghiya v. State of Rajasthan(2009) 2 SCC 281 : [2008] 17 SCR 369; A ConvictPrisoner v. State 1993 Cri LJ 3242 – referred to.

National Crime Records Bureau, Prison Statistics inFIndia https://ncrb.gov.in/sites/default/files/PSI- 2021/Executive_ncrb_Summary-2021.pdf; DonaldClemmer, The Prison Community (1968) Holt, Rinehart& Winston, which is referred to in Tomasz Sobecki,‘Donald Clemmer’s Concept of Prisonisation’,available at: https://www.tkp.edu.pl/wp- content/Guploads/2020/12/Sobecki_sklad.pdf (accessed on 23rdMarch 2023) – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.943 of 2023.

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From the Judgment and Order dated 08.09.2022 of the High Courtof Delhi at New Delhi in BA No. 2675 of 2022.

Ms. Tanya Agarwal, Mrs. Shubhangi Tuli, Advs. for the Appellant.

Vikramjit Banerjee, A.S.G., Shreekant Neelappa Terdal,Ms. Nachiketa Joshi, Digvijay Dam, Sachin Sharma, Rajan Kr. Chourasia,Ms. Shruti Agarwal, Ms. Janhvi Prakash, Kartik Dey, Advs. for theRespondent.

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The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

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1. Special leave granted. With consent of counsel for parties, theappeal was heard finally.

2. Long back, in Hussainara Khatoon v. Home Secy., State ofBihar[1]this court had declared that the right to speedy trial of offendersfacing criminal charges is “implicit in the broad sweep and content ofArticle 21 as interpreted by this Court”. Remarking that a validprocedure under Article 21 is one which contains a procedure that is“reasonable, fair and just” it was held that:

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A“Now obviously procedure prescribed by law for depriving aperson of liberty cannot be “reasonable, fair or just” unlessthat procedure ensures a speedy trial for determination ofthe guilt of such person. No procedure which does not ensurea reasonably quick trial can be regarded as “reasonable, fairor just” and it would fall foul of Article 21. There can,Btherefore, be no doubt that speedy trial, and by speedy trialwe mean reasonably expeditious trial, is an integral andessential part of the fundamental right to life and libertyenshrined in Article 21. The question which would, however,arise is as to what would be the consequence if a personCaccused of an offence is denied speedy trial and is sought tobe deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental right underArticle 21.”

3. These observations have resonated, time and again, in severalDjudgments, such as Kadra Pahadiya & Ors. v. State of Bihar[2] andAbdul Rehman Antulay v. R.S. Nayak[3]; in the latter the court re-emphasized the right to speedy trial, and further held that an accused,facing prolonged trial, has no option:

“The State or complainant prosecutes him. It is, thus, theEobligation of the State or the complainant, as the case maybe, to proceed with the case with reasonable promptitude.Particularly, in this country, where the large majority ofaccused come from poorer and weaker sections of the society,not versed in the ways of law, where they do not often getcompetent legal advice, the application of the said rule isFwholly inadvisable. Of course, in a given case, if an accuseddemands speedy trial and yet he is not given one, may be arelevant factor in his favour. But we cannot disentitle anaccused from complaining of infringement of his right tospeedy trial on the ground that he did not ask for or insistGupon a speedy trial.”

4. These issues have pivotal meaning to the facts of this case.The appellant complains that his application for bail ought not to havebeen rejected by the High Court, in the present case, considering that he 2 (1981) 3 SCC 671H3 [1991] Supp. 3 SCR 325: (1992) 1 SCC 225

has suffered incarceration for over 7 years and the criminal trial hashardly reached the half-way mark. The appellant is accused of committingoffences punishable under Sections 20, 25 and 29 of the Narcotic Drugsand Psychotropic Substances Act, 1985 (hereafter ‘NDPS Act’). Hisapplication under Section 439 read with Section 482 of the CriminalProcedure Code (hereafter ‘CrPC’), seeking grant of regular bail, beforethe Delhi High Court, was denied by the impugned judgment[4]. Someother facts important to the decision in this case, are that at the time ofhis arrest, the appellant was 23 years. He was not found in possessionof the narcotic drug; other co-accused were.

5. The prosecution alleges that on 28.09.2015, based on secretinformation received by the police, a raid was conducted, leading toarrest of four accused persons - Nitesh Ekka, Sanjay Chauhan, SharifKhan, and Virender Shakiyar/Sakyabar @ Deepak, who were allegedto be in possession of 180 kilograms of ganja. During investigation, theaccused Nitesh Ekka was taken to Chhattisgarh for identification of co-accused persons. At his instance, the present appellant Mohd. Muslimwas arrested on the intervening night of 03/04.10.2015. Pursuant tofurther investigation, three other co-accused (Virender Singh @ Beerey,Shantilal Tigga @ Guddu, and Nepal Yadav @ Tony Pahalwan) werealso arrested. It is the prosecution’s case that Virender Singh @ Beereywould purchase ganja and make transfers to the bank accounts belongingto Mohd. Muslim, Shantilal Tigga @ Guddu and Nitesh Ekka, and theirfriends and families, before further supplying the ganja to Nepal Yadav@ Tony Pahalwan. On 29.02.2016, the chargesheet was filed underSections 20/ 25/ 29 of the NDPS Act and Section 120B IPC, and on05.07.2016 the charges were framed against the appellant and other co-accused. As per pleadings, two supplemental chargesheets were alsofiled on 01.08.2016 and 08.11.2017.

6. The appellant’s bail application was rejected by the district court[5]based on the gravity of the offences alleged, severity of punishment, andthe appellant’s alleged role. It was noted that he had been in regularcontact with the other co-accused to commit the crime, and that materialwitnesses were yet to be examined.

4 Order dated 08.09.2022 in Bail Application No. 2675/2022.

5 Order dated 08.06.2022 in FIR No. 148/2015, passed by the ASJ & Special Judge(NDPS), South East District, Saket Court, New Delhi.

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A7. Aggrieved, the present appellant approached the High Court.The impugned judgment records that the present accused was primafacie in regular contact with other co-accused as indicated by the callrecords, and that the main accused Virender Singh @ Beerey hadtransferred money from his bank account to the appellant’s bank account,several times. One of the witnesses, during trial, had also allegedlyBmentioned that Rs. 50,000 was received from the present appellant. Itwas held that there was a prima facie case against him, and no groundsto rely on the exceptions of Section 37 of the NDPS Act; therefore,application for regular bail was refused, with a direction to the trial courtto expedite the trial and conclude it within six months. Aggrieved, theCappellant is now before this court, renewing his plea for grant of regularbail.

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8. Ms. Tanya Agarwal, learned counsel appearing on behalf ofthe appellant, urged that the period of long incarceration suffered, entitledthe appellant to grant of bail. Further, 34 more witnesses were yet to beDexamined, with little or no progress to the trial since the High Court’sdirection to expedite the trial. It was also pointed out that main accusedVirender Singh @ Beerey and another co-accused Nepal Yadav, hadboth already been granted bail by the High Court[6]. Counsel urged bail onthe ground of parity.E9. Mr. Vikramjit Banerjee, learned Additional Solicitor General ofIndia, appearing for the State, strongly opposed grant of bail, citing Section37 of the NDPS Act. It was urged that the appellant was actively involvedin the commission of the offence – with call records and bank transactionsimplicating him with the main accused Virender Singh @ Beerey. TheASG submitted that such cases are deeply concerning, as the accusedFpersons are said to be involved in a drug peddling network. The publicinterest of protection against sale and use of illegal drugs, outweighedthe concerns regarding individual liberty of the accused, and justifiedcontinued custody of the appellant. Provisions like Section 37 of theNDPS Act have been upheld by this court, as necessary to ensure publicGorder and to prevent recurrence of serious crimes like drug dealing. Thelearned ASG also submitted that the role of the appellant, though he is aco-accused is prominent, as he appears to be the mastermind behind thesupply and delivery of narcotic substances from Chhattisgarh.

6 Order dated 10.12.2018 in Bail Application No. 2188/2018, and order dated 26.07.2018Hin Bail Application No. 944/2018, respectively.

MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI)[S. RAVINDRA BHAT, J.]

Analysis and Conclusions

10. Section 37 of the NDPS Act reads as follows:

“Offences to be cognizable and non-bailable—(1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973—

(a) every offence punishable under this Act shall becognizable; (b) no person accused of an offence punishable for a term ofimprisonment of five years or more under this Act shall bereleased on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity tooppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, thecourt is satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence and that he isnot likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b)of sub-section (1) are in addition to the limitations under theCode of Criminal Procedure, 1973 or any other law for thetime being in force, or granting of bail.”

11. In this case, as it stands, the appellant has been in custodysince 03.10.2015, barring grant of interim bail from time to time, forwedding ceremonies[7] and to take care of his ailing mother[8]. It wasobserved by this court, in State of Madhya Pradesh v. Kajad[9]whilecommenting on Section 37 of the NDPS Act, that a “liberal” approachshould not be adopted:

“Negation of bail is the rule and its grant and exception undersub clause (ii) of clause (b) of Section 37(1). For grantingthe bail the court must, on the basis of the record producedbefore it, be satisfied that there are reasonable grounds forbelieving that the accused is not guilty of the offences with 7 Order dated 03.05.2016 by the Special Judge; and Order dated 28.01.2022 by theSpecial Judge.

8 Order dated 24.07.2020 in Bail Application No. 1859/2020.

9 [2001] Supp. 2 SCR 617: (2001) 7 SCC 673.

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Awhich he is charged and further that he is not likely to commitany offence while on bail. It has further to be noticed that theconditions for granting the bail, specified in clause (b) ofsub-section (1) of Section 37 are in addition to the limitationsprovided under the Code of Criminal Procedure or any otherlaw for the time being in force regulating the grant of bail.”B

12. This court has to, therefore, consider the appellant’s claim forbail, within the framework of the NDPS Act, especially Section 37. InSupreme Court Legal Aid Committee (Representing UndertrialPrisoners) v. Union of India[10], this court made certain crucialobservations, which have a bearing on the present case while dealingCwith denial of bail to those accused of offences under the NDPS Act:

“On account of the strict language of the said provision veryfew persons accused of certain offences under the Act couldsecure bail. Now to refuse bail on the one hand and to delaytrial of cases on the other is clearly unfair and unreasonableDand contrary to the spirit of Section 36(1) of the Act, Section309 of the Code and Articles 14, 19 and 21 of the Constitution.We are conscious of the statutory provision finding place inSection 37 of the Act prescribing the conditions which haveto be satisfied before a person accused of an offence underEthe Act can be released. Indeed we have adverted to thissection in the earlier part of the judgment. We have also keptin mind the interpretation placed on a similar provision inSection 20 of the TADA Act by the Constitution Benchin Kartar Singh v. State of Punjab [(1994) 3 SCC 569].Despite this provision, we have directed as above mainly atFthe call of Article 21 as the right to speedy trial may evenrequire in some cases quashing of a criminal proceedingaltogether, as held by a Constitution Bench of this Courtin A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , releaseon bail, which can be taken to be embedded in the right ofGspeedy trial, may, in some cases be the demand of Article 21.As we have not felt inclined to accept the extreme submissionof quashing the proceedings and setting free the accusedwhose trials have been delayed beyond reasonable time forreasons already alluded to, we have felt that deprivation of

the personal liberty without ensuring speedy trial would alsonot be in consonance with the right guaranteed by Article21. Of course, some amount of deprivation of personal libertycannot be avoided in such cases; but if the period ofdeprivation pending trial becomes unduly long, the fairnessassured by Article 21 would receive a jolt. It is because ofthis that we have felt that after the accused persons havesuffered imprisonment which is half of the maximumpunishment provided for the offence, any further deprivationof personal liberty would be violative of the fundamental rightvisualised by Article 21, which has to be telescoped with theright guaranteed by Article 14 which also promises justness,fairness and reasonableness in procedural matters.”

13. When provisions of law curtail the right of an accused tosecure bail, and correspondingly fetter judicial discretion (like Section 37of the NDPS Act, in the present case), this court has upheld them forconflating two competing values, i.e., the right of the accused to enjoyfreedom, based on the presumption of innocence, and societal interest –as observed in Vaman Narain Ghiya v. State of Rajasthan[11] (“theconcept of bail emerges from the conflict between the police powerto restrict liberty of a man who is alleged to have committed a crime,and presumption of innocence in favour of the alleged criminal….”).They are, at the same time, upheld on the condition that the trial isconcluded expeditiously. The Constitution Bench in Kartar Singh v. Stateof Punjab[12]made observations to this effect. In Shaheen WelfareAssociation v. Union of India[13] again, this court expressed the samesentiment, namely that when stringent provisions are enacted, curtailingthe provisions of bail, and restricting judicial discretion, it is on the basisthat investigation and trials would be concluded swiftly. The court saidthat Parliamentary intervention is based on:

“a conscious decision has been taken by the legislature tosacrifice to some extent, the personal liberty of an undertrialaccused for the sake of protecting the community and thenation against terrorist and disruptive activities or otheractivities harmful to society, it is all the more necessary that 11 [2008] 17 SCR 369: (2009) 2 SCC 281

12 [1994] 2 SCR 375: (1994) 3 SCC 569

13 [1996] 2 SCR 1123: (1996) 2 SCC 616

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Ainvestigation of such crimes is done efficiently and anadequate number of Designated Courts are set up to bring tobook persons accused of such serious crimes. This is the onlyway in which society can be protected against harmfulactivities. This would also ensure that persons ultimately foundinnocent are not unnecessarily kept in jail for long periods.”B14. In a recent decision, while considering bail under the UnlawfulActivities Act (Prevention) Act, 1967, this court in Union of India v. K.A. Najeeb[14] observed that:

“12. Even in the case of special legislations like the TerroristCand Disruptive Activities (Prevention) Act, 1987 or the NarcoticDrugs and Psychotropic Substances Act, 1985 (“the NDPSAct”) which too have somewhat rigorous conditions for grantof bail, this Court in Paramjit Singh v. State (NCT of Delhi),(1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005)11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCCD731 enlarged the accused on bail when they had been in jailfor an extended period of time with little possibility of earlycompletion of trial. The constitutionality of harsh conditionsfor bail in such special enactments, has thus been primarilyjustified on the touchstone of speedy trials to ensure theEprotection of innocent civilians.”The court concluded that statutory restrictions like Section 43-D(5) of the UAPA, cannot fetter a constitutional court’s ability to grantbail on ground of violation of fundamental rights.

15. Even in the judgment reported as Vijay Madanlal ChaudharyFv. Union of India[15] this court while considering bail conditions underthe Prevention of Money Laundering Act, 2002, held that:

“If the Parliament/Legislature provides for stringent provisionof no bail, unless the stringent conditions are fulfilled, it isthe bounden duty of the State to ensure that such trials getGprecedence and are concluded within a reasonable time, atleast before the accused undergoes detention for a periodextending up to one-half of the maximum period ofimprisonment specified for the concerned offence by law.”

14 [2021] 2 SCR 443: (2021) 3 SCC 713H15 [2022] 6 SCR 382: 2022 SCC Online SC 929

16. In the most recent decision, Satender Kumar Antil v. CentralBureau of Investigation[16] prolonged incarceration and inordinate delayengaged the attention of the court, which considered the correct approachtowards bail, with respect to several enactments, including Section 37NDPS Act. The court expressed the opinion that Section 436A[17] (whichrequires inter alia the accused to be enlarged on bail if the trial is notconcluded within specified periods) of the Criminal Procedure Code,1973 would apply:

“We do not wish to deal with individual enactments as eachspecial Act has got an objective behind it, followed by therigour imposed. The general principle governing delay wouldapply to these categories also. To make it clear, the provisioncontained in Section 436-A of the Code would apply to theSpecial Acts also in the absence of any specific provision.For example, the rigour as provided under Section 37 of theNDPS Act would not come in the way in such a case as we aredealing with the liberty of a person. We do feel that more therigour, the quicker the adjudication ought to be. After all, inthese types of cases number of witnesses would be very lessand there may not be any justification for prolonging the trial.Perhaps there is a need to comply with the directions of thisCourt to expedite the process and also a stricter complianceof Section 309 of the Code.”

17. The facts in this case reveal that the recovery of ganja wasmade on 28.09.2015, from the four co-accused, including Nitesh Ekka.

16 (2022) 10 SCC 51

17 Section 436A provides as follows:

“Where a person has, during the period of investigation, inquiry or trial underthis Code of an offence under any law (not being an offence for which the punishment ofdeath has been specified as one of the punishments under that law) undergone detentionfor a period extending up to one-half of the maximum period of imprisonment specifiedfor that offence under that law, he shall be released by the Court on his personal bondwith or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasonsto be recorded by it in writing, order the continued detention of such person for a periodlonger than one-half of the said period or release him on bail instead of the personalbond with or without sureties; Provided further that no such person shall in any case be detained during theperiod of investigation inquiry or trial for more than the maximum period ofimprisonment provided for the said offence under that law.”

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AThe present appellant was arrested at the behest, and on the statementof this Nitesh Ekka. The prosecution has relied on that statement, aswell as the confessional statement of the present appellant; in addition, ithas relied on the bank statements of Virender Singh @ Beerey, whoallegedly disclosed that money used to be transferred to the appellant.As against this, the prosecution has not recovered anything else fromBthe appellant; its allegation that he is a mastermind, is not backed by anyevidence of extensive dealing with narcotics, which would reasonablyhave surfaced. The prosecution has not shown involvement of theappellant, in any other case. Furthermore, he was apparently 23 yearsof age, at the time of his arrest. It is an undisputed fact that two co-Caccused persons (who also, were not present at the time of raid andfrom whom no contraband was recovered) - the accused (Virender Singh@ Beerey) who allegedly transferred money to the appellant’s accountas payment for the ganja, and the accused (Nepal Yadav @ TonyPahalwan) from whom the original insurance papers and registrationcertificate of the car from which contraband was seized, was recovered[18]D- have both been enlarged on bail. The appellant has been in custody forover 7 years and 4 months. The progress of the trial has been at a snail’space: 30 witnesses have been examined, whereas 34 more have to beexamined.

18. The conditions which courts have to be cognizant of are thatEthere are reasonable grounds for believing that the accused is “not guiltyof such offence” and that he is not likely to commit any offence whileon bail. What is meant by “not guilty” when all the evidence is not beforethe court? It can only be a prima facie determination. That places thecourt’s discretion within a very narrow margin. Given the mandate ofFthe general law on bails (Sections 436, 437 and 439, CrPC) which classifyoffences based on their gravity, and instruct that certain serious crimeshave to be dealt with differently while considering bail applications, theadditional condition that the court should be satisfied that the accused(who is in law presumed to be innocent) is not guilty, has to be interpretedreasonably. Further the classification of offences under Special ActsG(NDPS Act, etc.), which apply over and above the ordinary bail conditionsrequired to be assessed by courts, require that the court records itssatisfaction that the accused might not be guilty of the offence and that 18 As per the counter-affidavit dated 21.02.2023 filed by the respondent-state beforeHthis court.

upon release, they are not likely to commit any offence. These twoconditions have the effect of overshadowing other conditions. In caseswhere bail is sought, the court assesses the material on record such asthe nature of the offence, likelihood of the accused co-operating withthe investigation, not fleeing from justice: even in serious offences likemurder, kidnapping, rape, etc. On the other hand, the court in these casesunder such special Acts, have to address itself principally on two facts:likely guilt of the accused and the likelihood of them not committing anyoffence upon release. This court has generally upheld such conditionson the ground that liberty of such citizens have to - in cases when accusedof offences enacted under special laws – be balanced against the publicinterest.

19. A plain and literal interpretation of the conditions under Section37 (i.e., that Court should be satisfied that the accused is not guilty andwould not commit any offence) would effectively exclude grant of bailaltogether, resulting in punitive detention and unsanctioned preventivedetention as well. Therefore, the only manner in which such specialconditions as enacted under Section 37 can be considered withinconstitutional parameters is where the court is reasonably satisfied on aprima facie look at the material on record (whenever the bail applicationis made) that the accused is not guilty. Any other interpretation, wouldresult in complete denial of the bail to a person accused of offencessuch as those enacted under Section 37 of the NDPS Act.

20. The standard to be considered therefore, is one, where thecourt would look at the material in a broad manner, and reasonably seewhether the accused’s guilt may be proved. The judgments of this courthave, therefore, emphasized that the satisfaction which courts areexpected to record, i.e., that the accused may not be guilty, is only primafacie, based on a reasonable reading, which does not call for meticulousexamination of the materials collected during investigation (as held inUnion of India v. Rattan Malik[19]). Grant of bail on ground of unduedelay in trial, cannot be said to be fettered by Section 37 of the Act,given the imperative of Section 436A which is applicable to offencesunder the NDPS Act too (ref. Satender Kumar Antil supra). Havingregard to these factors the court is of the opinion that in the facts of thiscase, the appellant deserves to be enlarged on bail.

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A21. Before parting, it would be important to reflect that laws whichimpose stringent conditions for grant of bail, may be necessary in publicinterest; yet, if trials are not concluded in time, the injustice wrecked onthe individual is immeasurable. Jails are overcrowded and their livingconditions, more often than not, appalling. According to the Union HomeMinistry’s response to Parliament, the National Crime Records BureauBhad recorded that as on 31[st] December 2021, over 5,54,034 prisonerswere lodged in jails against total capacity of 4,25,069 lakhs in the country[20].Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

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22. The danger of unjust imprisonment, is that inmates are at riskof “prisonisation” a term described by the Kerala High Court in A ConvictCPrisoner v. State[21]as”a radical transformation” whereby the prisoner:“loses his identity. He is known by a number. He loses personalpossessions. He has no personal relationships. Psychologicalproblems result from loss of freedom, status, possessions,dignity any autonomy of personal life. The inmate culture ofDprison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.”

23. There is a further danger of the prisoner turning to crime, “ascrime not only turns admirable, but the more professional the crime,more honour is paid to the criminal”[22] (also see Donald Clemmer’s‘The Prison Community’ published in 1940[23]). Incarceration has furtherEdeleterious effects - where the accused belongs to the weakest economicstrata: immediate loss of livelihood, and in several cases, scattering offamilies as well as loss of family bonds and alienation from society. Thecourts therefore, have to be sensitive to these aspects (because in theevent of an acquittal, the loss to the accused is irreparable), and ensureFthat trials – especially in cases, where special laws enact stringentprovisions, are taken up and concluded speedily.

20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/Gdefault/files/PSI-2021/Executive_ncrb_Summary-2021.pdf21 1993 Cri LJ 3242

22 Working Papers - Group on Prisons & Borstals - 1966 U.K.

23 Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which isreferred to in Tomasz Sobecki, ‘Donald Clemmer’s Concept of Prisonisation’, availableat: https://www.tkp.edu.pl/wp-content/uploads/2020/12/Sobecki_sklad.pdfaccessedHon 23[rd] March 2023).

24. For the above reasons, the appellant is directed to be enlargedon bail, subject to such conditions as the trial court may impose. Theappeal is allowed, in the above terms. No costs.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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