Long Custody Without Trial Conclusion Violates Right to Personal Liberty: Calcutta High Court Grants Bail to Bangladeshi National in NDPS Case

Calcutta High Court in Tapas Ahmed v. State of West Bengal granted bail to a Bangladeshi national accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the Foreigners Act. The petitioner, arrested in 2019 for possession of 40 grams of Yaba tablets, had been in custody for over five years. The court ruled that prolonged pre-trial detention violated his right to personal liberty and granted bail under Section 436A of the Code of Criminal Procedure (CrPC).

The petitioner, Tapas Ahmed, was arrested on April 3, 2019, for allegedly violating Sections 22(b) and 29 of the NDPS Act, along with Section 14 of the Foreigners Act. The total recovery was 84 grams of Yaba tablets, classified as intermediate quantity under the NDPS Act. Additionally, as a Bangladeshi national, the petitioner could not provide valid documents for his stay in India, leading to charges under the Foreigners Act.

Ahmed had already spent more than five years in custody, exceeding the maximum sentence under the Foreigners Act (five years) and surpassing half of the maximum imprisonment under the NDPS Act (10 years).

Prolonged Detention and Section 436A CrPC: The petitioner invoked Section 436A of the CrPC, which mandates the release of undertrial prisoners who have been in detention for more than half of the maximum imprisonment period for the offenses charged. The court observed that Ahmed had already served more than half of the prescribed period under the NDPS Act and the full sentence under the Foreigners Act.

Rights of Foreign Nationals: The state argued against bail, highlighting the petitioner’s illegal entry into India and pending murder charges in Bangladesh. However, the court noted that there is no absolute bar against granting bail to foreign nationals, particularly when the conditions of prolonged custody are met.

Delay in Trial: The court found that the petitioner could not be solely blamed for the delays in the trial. Despite a previous court order directing the trial to be completed within two years, only one prosecution witness out of thirteen had been fully examined in five and a half years.

Constitutional Right to Liberty: Citing the Supreme Court's emphasis on personal liberty and the right to a speedy trial, the court ruled that Ahmed’s continued detention was unjustified. The court also noted a recent Supreme Court decision discouraging the practice of keeping undertrial prisoners in custody while merely directing trial courts to expedite proceedings.

The Calcutta High Court granted bail to the petitioner, setting strict conditions, including a bond of ₹50,000 with two sureties, reporting to the local police station weekly, and applying for a temporary visa. The court warned that any violation of these conditions could result in the cancellation of bail.

This ruling reinforces the application of Section 436A CrPC in protecting the personal liberty of undertrial prisoners, including foreign nationals, when trials are unduly delayed. It underscores the importance of ensuring that prolonged custody does not infringe on the fundamental rights of the accused.

Date of Decision: October 8, 2024

Tapas Ahmed v. State of West Bengal​.