'Constitutional Duty Of State To Ensure Effective & Speedy Prosecution': Calcutta High Court Calls For Reports On Undertrials In NDPS Cases

"Right of bail to an under-trial flows from Article 21 of the Constitution of India which frowns upon unnecessary and prolonged detention pending judicial adjudication of guilt," observed the Calcutta High Court on Friday while stating that the restrictions on grant of bail to an undertrial under Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985, have to be read in light with the right to personal liberty envisaged under Article 21 of the Constitution. A Division Bench of Justices Suvra Ghosh and Joymalya Bagchi was hearing the bail application of an undertrial under the NDPS Act, who had been incarcerated for over five years during the pendency of his trial (where only two witnesses had been examined till date). Saddened by the 'chronic malady' of under-trial detention in India, the Bench called for reports on detention under the NDPS Act, whereby the accused have been in jail for five years or more. It said, "Under-trial detention in India is a chronic malady in the administration of criminal justice. 25th Edition of the Prison Statistics in India as per NCRB Report, 2019 shows that 69.5 per cent of prsioners in Indian jail are undertrials. Under such circumstances and to ensure that equal justice is extended to all under trials who are incarcerated in jail for five years and more in NDPS cases, we direct the learned ASG as well as the learned Public Prosecutor, High Court, Calcutta to submit reports enumerating cases under NDPS Act where accused persons are in detention for five years or more. Similar report shall be filed by the Registrar General of this Court also." The matter will be taken up on January 15, 2020. During the hearing, the question which arose for the Court's consideration was whether the restrictions imposed by Section 37 of the NDPS Act are over ridden by the operation of the directions given by the Supreme Court in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731. In this case, the Apex Court while dealing with the issue of grant of bail on the score of inordinate delay in disposal of trials, had taken into consideration the statutory restrictions under Section 37 of the NDPS Act and had held as follows: "We are conscious of the statutory provisions finding place in Section 37 of the Act, prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released…we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21." The Additional Solicitor General however disputed the application of this verdict and argued that no law under Article 141 was declared therein; only "one-time direction" was issued. He further contended that inordinate delay in trial may entitle the under trials to apply for bail only after compliance of requirements under Section 436A (Maximum period for which an undertrial prisoner can be detained) of CrPC and not otherwise. Not convinced by this submission, the Division Bench pointed out that the Apex Court in this case, after analysing the impact of inordinate and inexplicable delay on the fundamental rights of prisoners, went on to explore the reliefs which may be made available to the incarcerated persons booked under NDPS Act. It said, "These directions cannot be whittled down or restricted by the operation of Section 436 A Cr.P.C. The said provision is an expression of similar anxiety of the legislature to minimize under trial detention. The directives of the Apex Court relating to bail and section 436A operate in the same field and are supplementary to one another. To read one in derogative of the other would amount to restricting the right of under-trials to bail in the face of inordinate delay in trials and would frustrate the very spirit of the aforesaid law." On the argument that these directives were issued as a one-time measure, the Bench observed, "We, however, note that the directives were subsequently extended to the State of West Bengal and other States vide order dated 17th April, 1995 reported in 1995(4) SCC 695. We are of the view that the aforesaid directives of the Apex Court in the matter of grant of bail due to inordinate delay are required to be taken into consideration and similar relief is to be extended to all undertrials who stand on the same footing. Liberty is an inalienable right of every individual guaranteed by our Constitution and cannot be whittled down by arbitrary categorisation." The Bench added, ""Procedure established by law" under Article 21 cannot be viewed in isolation from the principles of "equal justice" or "equality before law" enshrined under Article 14. To achieve such universal equality it is imperative that the directives laid down by the Court in the said report be extended to all undertrials who are similarly...

'Constitutional Duty Of State To Ensure Effective & Speedy Prosecution': Calcutta High Court Calls For Reports On Undertrials In NDPS Cases

Akshita Saxena

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