When Delay In Trial Is Solely Due To Prosecution's 'Lethargy', Personal Liberty Overrides S.37(1)(b) Of NDPS Act: Kerala HC Grants Bail

The Kerala High Court recently held that when the prosecution is solely responsible for the delay in concluding the trial, the liberty guaranteed under Article 21 of the Constitution overrides the effect of Section 37(1)(b) of the NDPS Act.Section 37 of the Narcotic Drugs and Psychotropic Substances Act places an additional condition on giving bail when the offence involves commercial quantity. If the bail is opposed by the prosecution, the Court can give bail only if it is satisfied that there are reasonable grounds for believing that a person is not guilty of the offence and he will not commit any offence while on bail. However, the Supreme Court in Ankur Choudhary v State of Madhya Pradesh (2024) had said that if a trial is not concluded within a reasonable time, bail can be given to the accused even if he does not meet the stringent test under Section 37 of NDPS Act. The Supreme Court observed that the fundamental right guaranteed under Article 21 overrides the statutory embargo created under Section 37(1)(b). The petitioner had claimed the benefit of this judgment while seeking bail before the High Court. The petitioner submitted that after the completion of prosecution evidence, the prosecution produced additional witnesses with the prayer to summon them. The trial Court disallowed it. This order of the trial Court was challenged before the High Court. The High Court found that the trial court dismissed the application as reasons were not given for summoning additional witnesses. The High Court found the order was justified. However, an opportunity was given to the prosecution to file a fresh application for summoning the witnesses by clearly citing the reasons for examining themThe High Court had already denied bail to the petitioner twice before. In the last order, the Court mentioned that the petitioner can move the High Court for bail again if the trial is not completed within 6 months. Justice A. Badharudeen in the present case noted that the trial could not be completed on time due to 'lethargy on the side of the prosecution'. The Court said that the prosecution failed to include all necessary witnesses in the report and made an application to summon additional witness without showing the purpose of the examination. The application was dismissed by the trial court on that ground alone. The Court said in such circumstances, the personal liberty of an accused will prevail over the stringent conditions of Section 37(1)(b) of the Act."Thus it is evident that the lethargy on the side of the prosecution is the reason for non disposal of the matter as directed by this Court within the time frame and petitioner has in no way has played anything which would stand in the way of trial even on remote possibility or mere impossibility. In such a case, in consideration of the personal liberty of the petitioner guaranteed under Article 21 of the Constitution of India which overrides the effect of Section 37(1)(b) of the NDPS Act, the petitioner, who has been in custody from 29.01.2022 is liable to be released on bail."The Court however added that bail cannot be given on the ground of delay in completion of trial if it is seen that the accused has contributed to the delay in any way.".....the delay should be the sole contribution of the prosecution and the accused has no role in getting the matter prolonged in any manner. In cases, where dilatory tactics even in remote possibility, negligible liability, bare minimum or bare impossibility is the volition, hand out or benefactum of the accused, it could not be held in such cases that personal liberty under Article 21 of the Constitution of India overrides Section 37(1)(b) of the NDPS Act.”The Court in this case found that the delay caused was solely due to the prosecution and granted bailThe allegation against the accused was that he arranged a lodge for another accused to collect 80g of MDMA and paid rent for the room. The police had allegedly seized the contraband from the possession of the other accused. It was also alleged that the petitioner paid money to yet another person accused in this case of purchasing the contraband. The petitioner was booked for offences under Section 8(c) r/ w Section 22(c) of the NDPS Act.The Court directed the trial court to conclude the trial within two months.Counsel for the Petitioner: Advocates J. R. Prem Navaz. Muhammed SwadiqCounsel for the Respondents: Advocates Jibu T. S. (PP), R. Vinu Raj (Spl. PP)Case No: BA 8769 of 2024Case Title: Shuaib A. S. v State of Kerala and AnotherCitation: 2025 LiveLaw (Ker) 78Click Here To Read/ Download Order

When Delay In Trial Is Solely Due To Prosecution's 'Lethargy', Personal Liberty Overrides S.37(1)(b) Of NDPS Act: Kerala HC Grants Bail

Manju Elsa Isac

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