NDPS | Three Years Without Trial Progress Cannot Justify Continued Incarceration: Bombay High Court Grants Bail

Bombay High Court granted bail to a clearing agent accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The accused, Kondiba Gunjal, had been in custody for over three years without significant progress in his trial. Justice Bharat P. Deshpande, presiding over the matter, emphasized that prolonged incarceration and inordinate delays in the trial violated the applicant’s fundamental right to a speedy trial under Article 21 of the Constitution of India.

The Court remarked that “provisions like Section 37 [of the NDPS Act], which impose stringent restrictions on bail, cannot override the constitutional guarantee of personal liberty. The right to a speedy trial is an essential facet of personal liberty, and prolonged incarceration without trial progress militates against this right.”

The applicant had been arrested on August 9, 2021, following the seizure of 191.60 kg of heroin from a container imported under the name of M/s Sarvim Exports. The Directorate of Revenue Intelligence (DRI) alleged that the applicant’s role was revealed through statements recorded under Section 67 of the NDPS Act, primarily made by his co-accused. However, the landmark decision of the Supreme Court in Toofan Singh v. State of Tamil Nadu (2021) rendered such statements inadmissible as evidence, since they were recorded by officers deemed to be “police officers” under the Indian Evidence Act, 1872.

Justice Deshpande, while reviewing the evidence, observed that the case against the applicant primarily relied on call records and WhatsApp exchanges with co-accused persons. These communications were related to clearing consignments, which formed part of the applicant’s professional role as a clearing agent. The Court noted that no direct evidence established the applicant’s knowledge of or involvement in the concealment of contraband. It observed, “The clearing agent or facilitator cannot reasonably be expected to verify the contents of sealed consignments. Routine interactions and document exchanges with co-accused persons, particularly in a professional capacity, cannot be presumed to indicate criminal intent.”

The Court further highlighted that even though a significant quantity of heroin was seized, no material beyond inadmissible statements under Section 67 linked the applicant to the crime. Justice Deshpande concluded, “Except for the statements recorded under Section 67 of the NDPS Act, which are inadmissible in evidence, there is hardly any corroborative material to implicate the applicant. The rigors of Section 37 of the NDPS Act, which restrict bail in cases involving commercial quantities, cannot be applied mechanically when there is a clear violation of constitutional rights.”

Referring to precedents such as Union of India v. K.A. Najeeb (2021) and Satender Kumar Antil v. Central Bureau of Investigation (2022), the Court reiterated that statutory provisions under special laws, including the NDPS Act, must yield to constitutional safeguards in cases of prolonged pre-trial detention. The Court held that “prolonged incarceration, coupled with the failure to conclude the trial within a reasonable period, constitutes an undue infringement of the fundamental right guaranteed under Article 21.”

Justice Deshpande also cited the Supreme Court’s observation in Mohd. Muslim alias Hussain v. State (NCT of Delhi) (2023) that “even in cases where the statutory bar under Section 37 of the NDPS Act is applicable, the courts must reasonably examine the material collected during investigation and avoid a mechanical application of the embargo.”

The Court noted that the applicant had been in custody for three years, and no significant progress had been made in the trial. The case involved 54 witnesses, and even the framing of charges was pending. The Court concluded that continued detention in such circumstances was unwarranted. “The conclusion of the trial in the near future appears to be a remote possibility,” Justice Deshpande observed.

Allowing the bail application, the Court imposed strict conditions, including the surrender of the applicant’s passport, regular attendance at trial proceedings, and a prohibition on influencing witnesses or tampering with evidence. However, it clarified that the observations made in the judgment were limited to deciding the bail application and would not prejudice the trial.

This decision underscores the judiciary’s role in balancing the need for stringent drug control measures with the fundamental rights of accused persons. By prioritizing the constitutional right to a speedy trial over procedural barriers, the Bombay High Court has reinforced the principle that statutory restrictions cannot eclipse basic human rights. Justice Deshpande’s ruling serves as a reminder that the justice system must protect individual liberties while ensuring accountability under special laws.

Date of decision: 28 November 2024