Rigors of Section 37 of NDPS Act cannot be invoked to obstruct bail in perpetuity: Himachal Pradesh High Court

The Himachal Pradesh High Court recently emphasised the stringent provisions concerning bail under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 cannot be invoked in perpetuity to dilute the right of the accused to an expeditious trial [Deep Raj @ Neetu v. State of Himachal Pradesh]. .Justice Satyen Vaidya made the observation while granting bail to a man who had been in custody since March 30, 2021, after he was arrested on charges under the NDPS Act for allegedly having possessed charas..The Court noted that the fetters placed by Section 37 of the NDPS Act had been instrumental in denying the right of bail to the accused in this case. .The Judge proceeded to note that,"The question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?".Answering this query in the negative, Justice Vaidya observed,"In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.".Section 37 of the NDPS Act makes it relatively difficult for an accused to secure bail. As per this provision, a Court has to mandatorily ensure that the following conditions are satisfied before bail can be granted to a person accused of an offence under the NDPS Act, i.e.a) The public prosecutor to be given an opportunity to oppose the application for such release, andb) Where the public prosecutor opposes the application, the court must be satisfied that there are reasonable grounds to believe that the accused is not guilty of the alleged offence and that the accused is not likely to commit any offence while on bail..The accused, in this case, had approached the High Court seeking bail on the ground that he had been in custody for about a year and ten months while the trial was still moving at a snail's pace. Therefore, he contended that his Constitutional right to an expeditious trial was being infringed. .The State opposed the bail plea, contending that Section 37 of the NDPS Act would continue to apply and that a delay in concluding the trial cannot be a ground to release the accused on bail. .The Court, however, disagreed with the State's stance. Among other factors, Justice Vaidya noted no prosecution witnesses had been examined till date, despite the petitioner remaining in custody since March 2021. .Further, the judge noted that in a number of cases, both the Supreme Court as well as coordinate benches of the High Court have been allowing bail to those accused under the NDPS Act on account of such persons having been kept incarcerated for prolonged periods prior to the trial. .The High Court, therefore allowed the bail plea in this case as well, while observing,"... the petitioner is in custody since 30.03.2021 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that the delay in trial is attributable to the petitioner.".Advocate Yashveer Singh Rathore appeared for the petitioner, whereas Additional Advocates General, Manoj Chauhan and Varun Chandel represented the State. .[Read Order]