9 May 2023 11:50 AM GMT
The Karnataka High Court recently reflected upon the huge pendency of cases before a Special NDPS Court, while refusing bail to a Kenyan citizen who was held under the Act over two years ago for allegedly attempting to smuggle drugs in the country via foreign routes.A single judge bench of Justice M G Uma noted that pendency before the Trial Court as on April 1, 2023 is 1,308 special cases...
The Karnataka High Court recently reflected upon the huge pendency of cases before a Special NDPS Court, while refusing bail to a Kenyan citizen who was held under the Act over two years ago for allegedly attempting to smuggle drugs in the country via foreign routes.
A single judge bench of Justice M G Uma noted that pendency before the Trial Court as on April 1, 2023 is 1,308 special cases and remarked,
“It is humanly impossible to dispose of all those matters in a time bound manner since invariably in all these cases there will be lengthy evidence that is being led by the prosecution and equally lengthy cross examination on behalf of each of the accused. There will again be lengthy arguments even on bail applications and on merits. Under such circumstances, the practicability of disposing of the matter expeditiously within a few months would be a herculean task.”
Further, it said, “If in the meantime, considering the right of the accused guaranteed under Article 21 of the Constitution of India, they are to be enlarged on bail, almost all the accused who are in judicial custody in those 1308 cases pending before the Trial Court may have to be released on bail, which is definitely not in the best interest of the civilised society as a whole.”
The petitioner-accused had contended that delay in trial and continued incarceration had led to violation of his right to speedy trial. However, the Court observed, “When the individual right of the accused guaranteed under Article 21 of the Constitution of India is considered in the light of the interest of society as a whole, which is to be protected by unscrupulous drug peddlers, the balance will tilt in favour of the society as a whole, rather in favour of the accused. The societal interest is always paramount when compared to the individual right of the accused.”
The accused was apprehended in December 2020 and since then he is in judicial custody. In 2021 he filed a bail application which came to be rejected on finding a prima facie case against him.
Subsequently, he filed a plea seeking speedy trial wherein a coordinate bench of High Court in November 2022 directed the Trial Court to dispose of the special case within a period of three months. The said period was to expire on February 6, 2023. However, the Trial Court sought for extension of period for disposal of the case and considering the prayer, the time was further extended by three months. But the trial has not yet been completed and four more witnesses are to be examined on behalf of the prosecution, it was claimed.
The prosecution opposed the plea saying the contention of the petitioner that there are no materials to connect him to the offence in question and that he is entitled to be enlarged on bail were considered and dismissed by the court in the earlier bail petition. Further, the second bail plea was filed even before extension of period granted by the high court came to expire. Moreover, the petitioner was booked for the offence under the provisions of Foreigners Act, he not have a valid passport and visa to remain in India. Under such circumstances, he is not entitled to be released from prison and even if he is enlarged on bail, he is required to be shifted to the Detention Centre.
The bench noted that by assigning elaborate reasons, the earlier bail petition filed by the petitioner was dismissed and the same had not been challenged by the accused. In this context the Court observed,
“When sufficient materials are placed before the Court which prima facie substantiates the contention of the prosecution at the initial stage of considering the bail application, I do not find any reason to accept the contention of the petitioner, that there is inordinate delay in concluding the trial and it is a ground to enlarge the accused on bail without reference to the bar under Section 37 of NDPS Act.”
It added “The decision of the Hon'ble Apex Court (Mohd Muslim @ Hussain Vs State (NCB of Delhi, 2023 Live Law (SC) 260), cannot be stretched to such an extent to state that in any case irrespective of the materials that are placed by the prosecution to prove the guilt of the accused, the accused is entitled to be enlarged on bail ignoring Section 37 of NDPS Act. If this yardstick is adopted by the Courts, by and large no person accused of committing the offence under the special enactment could be detained in prison after expiry of a certain specified period, ignoring the prima facie materials that are relied on by the prosecution.”
It then opined, “Each one of us knows the menace that is being caused by Narcotics Drugs and Psychotropic Substances. This menace of drugs may enter our house unknowingly, but its effect will be unimaginable. When the Courts recognize and respect the individual right to life and liberty as guaranteed under Article 21 of the Constitution of India, it is the duty of the Court to recognize and respect such rights of the citizens as a whole. Societal interest will always be paramount when compared to the individual right of a person.”
It added, “When admittedly the petitioner is also booked for the offence under the Foreigners Act and it is stated that he is not having valid passport and visa to stay in India, definitely he is not entitled to be released from prison. Even if he is to be granted bail, he is to be sent to the Detention Centre.”
Accordingly it dismissed the petition.
Case Title: Emmanuel Michael And Union of India.
Case NO: CRIMINAL PETITION No.1469/2023
Citation: 2023 LiveLaw (Kar) 174
Date of Order: 21-04-2023
Appearance: Senior Advocate Hashmath Pasha for Advocate Mahammadali, HP-UNQIUE & CO.
Senior CGC Madhukar Deshpande.
Click Here To Read/Download Order