Bail on ground of inordinate delay also applies to those accused under NDPS Act: Calcutta High Court [Read Order]

The Calcutta High Court recently ruled that persons accused of offences under the Narcotics Drugs and Psychotropic Substances (NDPS) Act would also be covered by the Supreme Court's judgment in Supreme Court Legal Aid Committee vs. Union of India which dealt with the grant of bail on ground of inordinate delay in trial. .If we do not extend the wholesome directives in Supreme Court Legal Aid Committee (Supra) to all under trials (in NDPS case) incarcerating in jail for more than five years, we would fail to discharge our constitutional duty to preserve personal liberty...Calcutta High Court.Pertinently, the Court has also asked the State to furnish details of those who have been in jail for 5 years or more in NDPS cases so that such relief can be granted to them as well. The Court's order reads:."... to ensure that equal justice is extended to all under trials who are incarcerated in jail for five years and more in NDPS cases, we direct the learned ASG as well as the learned Public Prosecutor, High Court, Calcutta to submit reports enumerating cases under NDPS Act where accused persons are in detention for five years or more.".Before the Court was an accused under the NDPS Act who had undergone custody for five years and six months, with only two witnesses having been examined till date (In Re : Sanawar Ali). .Therefore, he moved the High Court for grant of bail, invoking the top Court's ruling in Supreme Court Legal Aid Committee vs. Union of India..Justices Joymalya Bagchi and Suvra Ghosh allowed his release on bail, opining that the Supreme Court's ruling is applicable in NDPS cases as well, contrary to the State's stance on the issue. The Court said: ."... we are of the view that the directives in Supreme Court Legal Aid Committee (Supra) applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution".The Bench added:."If we do not extend the wholesome directives in Supreme Court Legal Aid Committee (Supra) to all under trials (in NDPS case) incarcerating in jail for more than five years, we would fail to discharge our constitutional duty to preserve personal liberty of citizens and apply the balm of humanness to those unfortunate undertrials who have failed to knock the door of the Apex Court.".The State had opposed the plea for bail in view of the stringent provisions for grant of bail under Section 37 of the NDPS Act. Section 37 mandates that an accused must show that there is reasonable grounds to believe that he is not guilty of the alleged offence and that he is not likely to commit such an offence in the future before he can be granted bail. .The Bench, however, pointed out that bail is being sought not on merits (in which case Section 37 would apply) but on the ground of inordinate delay, in which case the right would flow from Article 21 of the Constitution (right to life and personal liberty subject to the procedure established by law). .The Bench explained that the "Right of bail to an undertrial flows from Article 21 of the Constitution of India which frowns upon unnecessary and prolonged detention pending judicial adjudication of guilt.".The Court added that the "procedure established by law" referred to in Article 21 cannot be viewed in isolation from principles of "equal justice‟ or "equality before law‟ enshrined under Article 14. .It opined that to achieve such universal equality, the Supreme Court's directions for bail on ground of inordinate delay must be "extended to all undertrials who are similarly circumstanced and are suffering protracted detention throughout the length and breadth of the country.".Adding to the conclusion that NDPS accused should not be excluded from the benefit of the Supreme Court's directions in Supreme Court Legal Aid Committee vs. Union of India, the Bench remarked,."Selective approach to personal liberty is an anathema to our constitutional scheme. Hence, it is the duty of every Court including the High Courts when faced with the question of 'bail or jail' to bear in mind the beholden principles of parity and equal access to justice. Courts need to rise above petty technicalities to preserve and restore liberty to all similarly circumstanced persons. Failure to do so, would create privileged oases of liberty accessible to few and denial of freedom to most."."Liberty is an inalienable right of every individual guaranteed by our Constitution and cannot be whittled down by arbitrary categorisation", the Bench said..It added that the Supreme Court's directions cannot be whittled down or restricted by the operation of Section 436 A CrPC either. Section 436A, CrPC lays down that the Public Prosecutor can be heard on why the custody of a person may be extended beyond the maximum period statutorily prescribed (one-half of the maxmum sentence prescribed for the offence)..Moreover, it was also noted that the Supreme Court was also conscious of the statutory restrictions under Section 37 of the NDPS Act when it passed its directives in the 1994 ruling. .Rejecting the State's submissions that the directives were only a one time measure meant for the State of Maharashtra, the Court noted that these directives were extended in 1995 to all States including West Bengal. .Advocates Debasis Kar, Arka Chakraborty, Husen Mustafi and Subhajit Chowhdur appeared for the petitioner. ASG YJ Dastoor and Advocate Amajit De appeared for the Union of India. Advocate KK Maiti appeared for the opposite party. .Read the Order: