Bail | When Trial Delay is Solely Attributable to the Prosecution, Liberty Must Prevail Over Statutory Embargo: Kerala High Court

The Kerala High Court in a significant ruling granted bail to an accused in a commercial quantity NDPS case, holding that prolonged incarceration due to prosecution’s failure to complete the trial within a reasonable timeframe violates Article 21 of the Constitution.

Justice A. Badharudeen, while allowing Bail observed: "Liberty, enshrined under Article 21, cannot be rendered meaningless by the lethargy of the prosecution. When the delay in trial is solely due to the prosecution, the constitutional mandate must override the statutory embargo under Section 37 of the NDPS Act."

The Court granted conditional bail to the petitioner, Shuaib A.S., accused of facilitating drug trafficking by arranging accommodation and financing contraband transactions, noting that he had already undergone more than three years of pre-trial detention.

Court Holds That Section 37 NDPS Act Cannot Override Article 21 When Trial Delay is Due to Prosecution’s Lethargy
The prosecution alleged that the petitioner had booked a lodge and financed the purchase of MDMA for the first accused, thereby participating in a larger drug trafficking conspiracy. The first two bail applications had been rejected, citing the rigors of Section 37 NDPS Act, which imposes strict conditions for granting bail in commercial quantity cases.

However, in the present petition, the petitioner argued a change in circumstances, pointing out that despite the High Court’s direction to complete the trial within six months, the prosecution had failed to do so.

The Court, after examining the facts, held that: "Section 37 NDPS Act is undoubtedly a stringent provision. But where the delay in concluding the trial is entirely due to the prosecution’s inaction, prolonged incarceration becomes unconstitutional. The prosecution cannot seek indefinite custody when it has failed to present its case in a timely manner."

Referring to the Supreme Court’s decision in Ankur Choudhary v. State of M.P. (SLP (Crl.) No. 4648/2024), the Court reaffirmed the principle that: "Failure to conclude the trial within a reasonable time, leading to prolonged incarceration, militates against the precious fundamental right guaranteed under Article 21. Conditional liberty must then override the statutory embargo under Section 37(1)(b) of the NDPS Act."

The Court concluded that in a case where the trial delay is solely due to the prosecution’s conduct, the embargo under Section 37 cannot be mechanically applied to deny bail.

"Prosecution Cannot Benefit from Its Own Lethargy": High Court Criticizes Delay in Examining Witnesses
A key factor in the Court’s decision was the unjustified delay caused by the prosecution in citing and summoning witnesses. Despite the completion of prosecution evidence, the prosecution later sought to introduce additional witnesses through Section 311 Cr.P.C., which the trial court rejected due to lack of justification.

Observing the procedural history, the Court stated: "The prosecution had ample opportunity to summon necessary witnesses. Its failure to do so cannot be a justification for indefinite incarceration. The accused cannot be punished for the prosecution’s lethargy."

The Court also referred to its earlier direction in B.A. No. 7182/2023, which gave the prosecution a six-month deadline to complete the trial, after which the accused could apply for bail again. With the prosecution failing to meet this deadline, the Court held:

"It is evident that the accused had no role in delaying the trial. When trial delay is caused solely by the prosecution’s inefficiency, the right to personal liberty must prevail."

This observation reinforces the principle that a fair trial includes the right to have proceedings concluded within a reasonable time, failing which bail must be considered, even in stringent offences.

Court Distinguishes Case from Precedents Where Bail Was Denied Under NDPS Act
The prosecution relied on Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, arguing that commercial quantity cases should not be diluted by considerations of prolonged detention.

However, the Court distinguished the present case, emphasizing that: "Where trial delay is not attributable to the accused, continued detention becomes a violation of fundamental rights. Bail cannot be denied when the prosecution itself is responsible for the delay."

The Court noted that PW4, the hotel manager, testified regarding the petitioner’s role in booking a lodge and making payments. However, it clarified: "Observations on evidence made at the bail stage are not binding on the trial court. The trial must proceed independently, and the court must assess the evidence on merits without being influenced by this order."

Thus, while acknowledging the seriousness of the allegations, the Court found that prolonged incarceration without trial completion justified bail.

Bail Granted With Stringent Conditions to Prevent Misuse
The Court granted bail, emphasizing that stringent conditions were necessary to ensure the accused does not tamper with evidence or abscond. The conditions imposed included:

•    Execution of a bond of ₹75,000 with two solvent sureties.
•    Prohibition from intimidating witnesses or tampering with evidence.
•    Mandatory court appearances during trial.
•    Surrender of passport and restriction on international travel.
•    Any involvement in another offence during bail period would result in immediate cancellation of bail.
•    The Court also directed the trial court to complete the trial within two months from the date of the order and report compliance.

"The accused has already suffered incarceration for over three years. Any further delay, without trial conclusion, would amount to a grave miscarriage of justice."

With this ruling, the High Court has reaffirmed the primacy of constitutional rights over procedural delays, ensuring that personal liberty is not sacrificed due to the prosecution’s inefficiency.

A Landmark Ruling on Bail in NDPS Cases with Prolonged Trial Delays
By granting bail in a commercial quantity NDPS case, the Kerala High Court has set a crucial precedent reinforcing the balance between statutory restrictions and fundamental rights. The ruling clarifies that while the NDPS Act imposes strict conditions for bail, these cannot be applied mechanically when the trial is unduly delayed due to the prosecution’s failure.

"A statute cannot override the Constitution. When liberty is at stake, procedural delays cannot be used as an excuse to prolong incarceration indefinitely."

This judgment serves as a guiding precedent for similar cases, ensuring that stringent bail provisions do not become instruments of oppression when trial delays infringe upon fundamental rights.

Date of Decision: January 30, 2025