The Gauhati High Court in the case Anil Malakar v. The State of Assam observed and has granted bail to an accused arrested for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, NDPS Act while considering that there was no plausible ground to believe that he was guilty of the offence.
The bench headed by Justice Arun Dev Choudhury in the case observed that alongside the embargo placed by Section 37 of NDPS Act, thus, the ground of undue delay in trial can be a ground for granting bail, inasmuch as the court is to come to the satisfaction that there is no likelihood of completion of trial in near future.
The bench stated that such ground of inordinate delay shall depend on the facts of the each case and the cause of delay is also required to be noted down.
The court in the case observed that as per the prosecution case, 29.030 kg of Ganja was recovered from Agartala Deodhar Express, but no suspect was initially found.
Later, the petitioner was implicated based on statement of two witnesses recorded as stated under Section 161 of the Code of Criminal Procedure.
In the present case, the petitioner was arrested after 6 months of registration of the FIR and upon filing of the chargesheet, charge under Section 20(c) of the NDPS Act was framed by the Trial Court on 13.09.2023.
The court stated with regards to the confessional statement as recorded under Section 67 of the NDPS Act.
The counsel appearing for the petitioner submitted before the court that such statement shall remain inadmissible even at the stage of consideration of bail. Thus, he placed reliance on the judgement of the Supreme Court in the case State v. Pallulabid Ahamed Arimutta & Others and Tofan Singh v. State of Tamil Nadu.
On the other hand, the Additional Public Prosecutor, relied upon the judgement of the Apex Court in the case Narcotics Control Bureau v. Mohit Agarwal, wherein it has been argued that without arriving at a satisfaction as contemplated under Section 37 of NDPS Act, an accused cannot be enlarged on bail only on the ground of long incarceration.
The Supreme Court referred to the case Satender Kumar Antil v. CBI, wherein the court noted that the grant of bail on ground of undue delay in trial cannot be said to be fettered by Section 37 of NDPS Act, inasmuch as Section 436A of CrPC was made applicable in Antil (Supra) to offences under the NDPS Act.
It was reiterated before the court that reasonable fair and just procedure in a criminal trial is a constitutional obligation on the part of the State, and a speedy trial is also one of the dimensions of the fundamental right to life as stated under Article 21 of the Constitution of India.
The bench of Justice Choudhury stated on confession of the statements as stated under section 67 of the NDPS Act that the ratio laid down in the case of Pallulabid Ahamed Arimutta (supra), that a confessional statement recorded under Section 67 of the NDPS Act, 1985, will remain inadmissible in the trial of an offence under the NDPS Act and therefore, such statement more particularly on the basis of the confessional statement or voluntary statement of the co-accused cannot be a ground to have a reasonable belief that the accused is guilty of the offence.
Accordingly, the court granted the bail.
The counsel, Advocate Sarfraz Nawaz appeared for petitioner PP, Assam represented the State.
