Friday, September 30th, 2022 05:28:24

Denial Of Speedy Trial Infringes Fundamental Right: Delhi HC

By SANJEEV SIROHI
Updated: September 1, 2022 11:03 am

While upholding the paramount importance pertaining to the dire need to hold speedy trial and most commendably linking it as an inseparable part of the fundamental rights under Article 21 of our Constitution which talks about the right to life and personal liberty, the Delhi High Court has in an extremely laudable, landmark, learned and latest judgment titled Gurmito vs Central Bureau of Investigation in Bail Appln 1621/2022 pronounced as recently as on July 20, 2022 minced just no words to indubitably hold that speedy trial form an intrinsic part of Article 21 of the Constitution and the denial of the same may be a ground for bail in certain circumstances. The Single Judge Bench comprising of Hon’ble Mr Justice Jasmeet Singh propounded that denial of bail without any possibility of the trial concluding anytime soon would cause an infringement of the accused person’s right guaranteed under Article 21 of the Constitution. An application had been filed which sought release of the accused under the NDPS Act on regular bail till the final disposal of the case registered by the CBI.

At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Delhi High Court comprising of Hon’ble Mr Justice Jasmeet Singh sets the ball rolling by first and foremost putting forth in para 1 that, “This is an application seeking release of applicant on regular bail till final disposal of CBI EO-II EOU-V New Delhi registered by Central Bureau of Investigation in connection with FIR No. RC 220/2016/E0022/CBI/EO-II u/s 20 read with Sec 8 and 29 of NDPS Act, 1985 (hereinafter “Act”) registered by CBI dated 17.12.2016, giving rise to filing of charge sheet no. 2/2017 dated 31.03.2017.”

Quite rightly, the Bench mentions in para 2 that, “It is submitted by Mr. Natrajan, learned counsel for the applicant that the applicant has been in judicial custody since 18.12.2016 except for a period of 20 days (16.06.2021 to 06.07.2021) and she is covered by judgement of Hon’ble Supreme Court in Supreme Court Legal Aid Committee (Representing undertrial prisoners) vs. Union of India, [(1994) 6 SCC 731].”

Also, the Bench then states in para 3 that, “The Ld. Counsel for the Applicant submits that in terms of this judgment where an undertrial prisoner is charged with an offence under the Act with minimum imprisonment of 10 years and minimum fine of 1 lakh, such an undertrial prisoner may be released on bail if he has been in jail for not less than 5 years subject to conditions prescribed in the said judgment.”

On the contrary, the Bench then reveals in para 4 that, “Mr. Bhardwaj, learned counsel for the respondent states that the observations of the Hon’ble Supreme Court were only a one time measure passed in peculiar circumstances of that case, where the NDPS Courts were not functioning within the State of Maharashtra at that point in time.”

As we see, the Bench then discloses in para 5 that, “Per contra, Mr. Natrajan has drawn my attention to a judgement dated 21.03.2022 passed in Bail Appl. 1724/2021 in Anil Kumar v. State by a coordinate bench of this Court, wherein this Court has held:

“12. A bare perusal of paragraph 16 indicates to this Court that the directions were not meant to be employed as one-time directions in the said case, but were meant to apply as a one time measure in all cases in which the accused persons were in jail and their trials had been delayed. The intention of paragraph 16 was to convey that despite the absence or presence of delay in trial in a case, the Special Court was still free to exercise its power to grant bail under Section 37 of the NDPS Act. Furthermore, if the Special Court also retained the power to cancel bail if the accused was found to be misusing the same. The directions were certainly not, as the learned APP has submitted, meant to only apply in the case therein, but were directions that were to be followed by Courts in all cases pertaining to NDPS wherein the accused had been subjected to prolonged delay in their trials.

  1. It is unconscionable to state that the rights guaranteed under Article 21 can be subjected to such arbitrary categorisation and would not apply across the board to all undertrials in NDPS cases who are at the receiving end of inordinate delay in trial.””

Needless to say, the Bench then mentions in para 6 that, “In the present case, as already observed, the applicant was arrested in 2016. She has been in custody for 5 and a half years.”

Ironically enough, the Bench laments in para 7 that, “It is stated that despite passage of 5 years 6 months, only the first witness is under examination out of the list of 33 witnesses.”

Further, the Bench then adds in para 8 that, “A coordinate bench of this Court in another case titled Atul Aggarwal v. Directorate of Revenue Intelligence [(2021) SCC OnLine Del 5489] has observed:

“12. However, it is also pertinent to note that the Applicant herein was arrested on 20.07.2012. It has been nine years since he has been in custody. While remaining conscious of the fact that the gambit of drug trafficking must be deterred with stringent punishments, and that those who indulge in such nefarious activities do not deserve any sympathy, Courts must also not ignore the plight of the undertrials who remain languishing in jails as their trials are delayed with no end in sight. Deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution under Article 21, and is, therefore, unconstitutional to its very core. In such cases, in absence of the pronouncement of conviction, the process itself becomes the punishment. Nine years cannot be said to be a short period of time.

  1. The Supreme Court, while deciding a petition pertaining to the delay in disposal of cases under the NDPS Act, had issued certain directions, subject to general conditions, in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) which have been reproduced as follows: “(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs. 50,000/- with two sureties for like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 3 1 and 31 A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order.” (emphasis supplied)

  1. As per Direction (iii) in the aforementioned judgment, where an undertrial accused has been charged with offence(s) under the NDPS Act which is punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, then such an undertrial is to be released if he has been in jail for not less than five years. In the instant case, the Applicant has been charged with offences punishable under Sections 9A,21,23,25A of the NDPS Act. With minimum imprisonment of 10 years as stipulated under these offences, an undertrial is to be released if he has been in jail for not less than five years. Therefore the applicant is squarely covered by the aforementioned judgment.””

Quite pertinently, the Bench then clarified in para 9 that, “According to me, and also the interpretation of a coordinate bench of this Court, the Hon’ble Supreme Court in para 16 of the Supreme Court Legal Aid Committee (supra) directed that in cases where accused persons are in jail and their trials are delayed inordinately they may be released on bail where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, and they have been in jail for not less than five years. It was not a one-time measure in the facts of that case, but was meant to apply as one-time measure in all cases where the undertrials are in jail and the conclusion of their trial is nowhere in sight.”

Adding more clarity, the Bench further clarifies in para 10 that, “In para 16 the Hon’ble Supreme Court further directed that the observations made hereinabove are not intended to interfere with Special Courts power to grant bail u/s 37 of the Act meaning thereby that the Special Courts u/s 37 can grant bail notwithstanding the above conditions i.e. the Special Courts are at liberty to grant bail even prior to having undergone half of the minimum sentence. The Hon’ble Supreme Court further in para 16 has also indicated that the Special Courts are always free to cancel the bail if the accused is found to be misusing the liberty of bail.”

As things stand, the Bench concedes in para 12 that, “I have also been taken through the judgment of the Hon’ble Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal, [CRIMINAL APPEAL NOS. 1001-1002 OF 2002 arising out of petitions for Special Leave to Appeal (CRL.) NO. 6128-29/2021] dated 19.07.2022 wherein the Hon’ble Supreme Court observed:

“…The length of the period of his custody or the fact that the chargesheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.””

Quite significantly, the Bench then notes in para 13 that, “However, the Hon’ble Supreme Court in NCB v. Mohit Aggarwal (supra) has not overruled the observations laid down in Supreme Court Legal Aid Committee (Supra) wherein the Supreme Court has relied upon the touchstones of Article 21 of the Constitution of India, the right intrinsic to every being. NCB v. Mohit Aggarwal (supra) does not overrule the judgment in Supreme Court Legal Aid Committee (Supra), the only way is to read both the judgments harmoniously. In my opinion, it is the intention of the Supreme Court in Supreme Court Legal Aid Committee (Supra) to balance personal liberty of the undertrial prisoner which is sacrosanct with the stringent rigours of the section 37 of the Act. Additionally, in NCB v. Mohit Aggarwal (supra), the accused respondent was taken into custody on 11.01.2020, the Respondent was granted bail by the High Court by order dated 16.03.2021. The accused had spent only one year and 2 months in jail. In the present case, the accused has already spent 5 years and 6 months in jail and only the first witness is under examination out of a list of 33 witnesses. NCB v. Mohit Aggarwal (supra) does not deal with a situation where the undertrial prisoner has undergone more than half of the term of the minimum 10 years prescribed as per the Act.”

It cannot be glossed over that the Bench then sought to underscore most forthrightly in para 14 that, “Even in Saudan Singh v. The State of Uttar Pradesh, SLP (CRL) No. 4633/2021 dated 05.10.2021 the Supreme Court observed that where convicts (whose appeal are pending) have undergone more than 50% of their sentence, may be entitled to bail. In the present matter the applicant is an undertrial prisoner who has already undergone 50% of the minimum 10 years prescribed as per the Act, without even being convicted/sentenced under the Act. Therefore, denial of bail without guarantee of speedy trial would be an infringement of the applicant’s right guaranteed under Article 21 of the Constitution of India. This grant of liberty does not infringe upon the powers of the trial court to cancel bail u/s 37 of the Act on non-compliance of the bail conditions by the Applicant.”

As a corollary, the Bench prima facie then holds in para 17 that, “It, therefore, is clear that speedy trial forms an intrinsic part of Article 21 of the Constitution and the denial of same may be a ground for bail in certain circumstances/conditions.”

It is worth noting that the Bench then discloses in para 18 that, “I have also heard the applicant on merits. The counsel for the applicant states that:

  1. a) The chargesheet indicates that the applicant neither had a mobile phone nor any cash.
  2. b) There is nothing against the Applicant except that she was accompanying her husband in a Scorpio Car.
  3. c) The Scorpio is also not owned by her and she did not rent it.
  4. d) Even the driver of the car was not hired by her.
  5. e) The drugs recovered were not on her person but were found from the car.”

Most notably, the Bench then mandates in para 19 that, “Prima Facie, it appears that the accused is not guilty of the offence. If she is part of a criminal conspiracy as per section 29 of the Act, the same needs to be decided in the trial, where the intricacies of the alleged crime can be delved into deeper by the trial court and the guilt or liability, if any, can be decided, after the trial. However, at this stage, if bail is denied without any possibility of the trial concluding anytime soon, would be infringing upon her right guaranteed under Article 21 of the Constitution.”

All told, the Delhi High Court has made it pretty clear that denial of speedy trial infringes fundamental right of an accused under Article 21 of the Constitution and it may be a ground for bail. It merits no reiteration that all the courts in India must definitely pay heed to what Hon’ble Mr Justice Jasmeet Singh of Delhi High Court has laid down in this leading case so very clearly, cogently and convincingly! No denying it!

By SANJEEV SIROHI

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