Pranav B Prem

In a significant ruling, the Kerala High Court has held that when the prosecution is solely responsible for the delay in concluding the trial, the fundamental right to personal liberty guaranteed under Article 21 of the Constitution overrides the stringent conditions under Section 37(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).  Justice A. Badharudeen, while granting bail to the petitioner in B.A. No. 8769 of 2024, emphasized that the accused had been in custody since January 29, 2022, and that the delay in concluding the trial was purely due to the prosecution’s failure to act diligently.

Section 37(1)(b) and the Supreme Court’s Precedent

Section 37 of the NDPS Act imposes a stringent test for granting bail when the offence involves a commercial quantity of contraband. If bail is opposed by the prosecution, the court can grant bail only if there are reasonable grounds to believe that the accused is not guilty and will not commit any offence while on bail. However, the Supreme Court in Ankur Choudhary v. State of Madhya Pradesh (2024) ruled that "failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” The petitioner relied on this precedent while seeking bail before the High Court.

Delay Solely Attributable to Prosecution's Lethargy

The prosecution case alleged that the petitioner had arranged a lodge for the first accused to collect 80 grams of MDMA, paid rent for the room, and made payments to another accused involved in purchasing the contraband. The petitioner was booked under Sections 8(c) r/w 22(c) and 29 of the NDPS Act. The High Court noted that it had previously denied bail twice but had granted the petitioner liberty to apply for bail again if the trial was not completed within six months. Despite this direction, the trial remained incomplete. The prosecution initially examined its witnesses but later sought to summon additional witnesses without providing reasons. The trial court rejected this request, and the prosecution’s challenge before the High Court resulted in an order permitting them to file a fresh application with proper justification. Analyzing these facts, the Court observed: "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 the petitioner 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."

Personal Liberty Overrides Section 37(1)(b) When Delay is Solely Due to Prosecution

The High Court reiterated that bail cannot be granted merely due to delay if the accused has contributed to the delay. However, where the delay is exclusively due to the prosecution’s failure to act diligently, the fundamental right to personal liberty prevails: "In order to hold that Article 21 of the Constitution of India overrides Section 37(1)(b) of the NDPS Act, the delay in trial at the instance of the prosecution is the 'decisive factor'. That is to say, 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 mere 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."

Bail Granted with Conditions

Taking into account the prolonged incarceration and the prosecution’s failure to act within the prescribed timeline, the Court granted bail to the petitioner, directing his release on execution of a bond of ₹75,000 with two solvent sureties. Additionally, the Court imposed strict conditions, including:

1. The petitioner must not intimidate witnesses or tamper with evidence.

2. He must cooperate with the trial and appear before the court as required.

3. He cannot leave India without prior permission from the jurisdictional court.

4. He must surrender his passport, if any, or file an affidavit stating he does not possess one.

5. Any involvement in another offence would result in bail cancellation.

The Court further directed the trial court to conclude the trial within two months without fail and to report compliance.

Cause Title: SHUAIB.A.S V/S STATE OF KERALA

Case No: BAIL APPL. NO. 8769 OF 2024

Date: January-30-2024

Bench: Justice A. Badharudeen

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