Necessary To Read S. 37 NDPS Act Subject To Fundamental Right To Life & Liberty Guaranteed U/Article 21: J&K High Court

Emphasising the necessity to interpret Section 37 of the NDPS Act in harmony with the fundamental right to life and liberty guaranteed under Article 21 of the Constitution, Justice Sanjeev Kumar referenced Mohammad Muslim @ Hussain v. State (NCT of Delhi), reported as 2023 and observed,

“..With a view to save the constitutionality of Section 37 of the NDPS Act, it is necessary to read Section 37 of the NDPS Act subject to the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India”.

The case centered on Bashir Ahmad Bhat, a 65-year-old man arrested in 2021 for allegedly possessing a commercial quantity of poppy straw. Bhat's initial bail plea was denied by the trial court due to Section 37 of the NDPS Act, which makes bail exceptionally difficult in such cases. Bhat filed a fresh bail plea before the High Court, arguing that the inordinate delay in his trial with only six out of 12 witnesses examined in two years had infringed upon his right to a speedy trial.

On the other hand, the prosecution emphasized the severity of the non-bailable offense, the commercial quantity of the contraband, and the applicability of Section 37 of the NDPS Act.

Justice Kumar delved into a comprehensive discussion on the constitutional aspect, specifically addressing Section 37 of the NDPS Act. The court emphasized the necessity to interpret Section 37 in harmony with the fundamental right to life and liberty guaranteed under Article 21 of the Constitution.

Referring to the constitutional balance, the judge highlighted that while Section 37 imposes stringent conditions for bail, it cannot outrightly deny bail without considering the accused's fundamental rights.

“..There is not an iota of doubt that prolonged incarceration without bail violates the right of the accused to speedy trial which is implicit under Article 21 of the Constitution of India. In such situation where the Court is of the opinion that the trial in a case has been prolonged beyond reasonable limits, without any reason or justification, it may grant bail to the accused on the strength of Article 21 of the Constitution of India, the rigors of Section 37 notwithstanding”, recorded Justice Kumar.

While Bhat's bail application was ultimately dismissed due to the ongoing trial and existing prima facie case, the Court issued a crucial directive to the trial court. Recognizing the potential injustice of prolonged incarceration without a swift conclusion, Justice Kumar emphasized the "onerous duty" to finalize the case within a year.

“This Court, however, views seriously the lapse on the part of the prosecution to examine the rest of six witnesses with promptitude. I, therefore, take this opportunity to remind the trial Court of its onerous duty to conclude the trial without waste of time, more particularly when the accused is in custody”, the court said.

Notably, Bhat was given the liberty to file a fresh bail application in case the trial :Court, failed to conclude the trial within the stipulated period granted.

Case Title: Bashir Ahmad Bhat Vs Union Territory of Jammu and Kashmir

Citation: 2023 LiveLaw (JKL) 322

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