Case title:
MOHD MUSLIM @ HUSSAIN VS STATE (NCT OF DELHI)
Date of Order:
28th of March, 2023
Bench:
Hon’ble Justice S. RAVINDRA BHAT
Parties:
Appellant: MOHD MUSLIM @ HUSSAIN
Respondent: STATE (NCT OF DELHI)
SUBJECT
Supreme Court grants bail in NDPS Case while rejected by the trial court and High Court.
IMPORTANT PROVISIONS
Section 37 of the NDPS Act reads as follows: “Offences to be cognizable and non-bailable—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973—
(a) Every offense punishable under this Act shall be cognizable;
(b) no person accused of an offense punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offense and that he is not likely to commit any offense while on bail.
(2) the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, or granting of bail.”
OVERVIEW
The appellant was 23 years. He was not found in possession of the narcotic drug; other co-accused were.
The prosecution alleges that on 28.09.2015, based on a secret information received by the police, a raid was conducted, leading to arrest of four accused persons - NE, SC, SK, and VK @ Dipak, who were alleged to be in possession of 180 kilograms of ganja.
In order to identify co-accused individuals, the accused Nitesh Ekka (NE) was taken to Chhattisgarh during the inquiry.
Four people were detained on September 28, 2015, following a police raid that allegedly turned up 180 kg of marijuana Ganja The accused NE was sent to Chhattisgarh during the investigation in order to identify the co-accused parties. The appellant Mohd. Muslim was detained on October 3 and 4, 2015, at his request.
Three additional co-accused people were arrested as a result of additional investigation. The prosecution asserts that Virender Singh would buy ganja, transfer the money to the appellant's and other co-bank accused's accounts, and then furnish Nepal Yadav.
Charges were laid against the appellant and other co-accused on 05.07.2016 after the charge sheet was filed on 29.02.2016. The district court denied the appellant's request for bail due to the seriousness of the alleged offenses.
The application for normal bail was denied, and the trial court was ordered to accelerate and end the matter within six months on the grounds that there was a prima facie case against him and no basis to rely on the exceptions of Section 37 of the NDPS Act. Angered, the appellant has returned to this court to reiterate his request for the granting of standard bail.
The appellant in this instance has been detained since October 3, 2015, without the occasional grant of interim bail for wedding ceremonies and to care for his ailing mother.
ISSUES RAISED
Whether the appeal of Grant for Bail of the appellant is valid.
ARGUMENTS ADVANCED BY THE APPELLANT
Counsel for the appellant argued that because of the prolonged confinement they had to endure, they should be granted bail. The trial had made little to no progress since the High Court's directive to quicken proceedings, and 34 additional witnesses were remained to be examined.
It was also noted that both main defendant Virender Singh @ Beerey and co-defendant Nepal Yadav have previously received bail orders from the High Court. On the basis of parity, urged bail.
ARGUMENTS ADVANCED BY THE RESPONDENT
In a drug case, the Additional Solicitor General of India objected to the appellant being granted bail, citing Section 37 of the NDPS Act. According to the ASG, the appellant actively participated in the crime and had ties to the principal accused.
Concerns about individual liberty were exceeded by the public interest in preventing the sale and consumption of illegal narcotics, which supported keeping the appellant in detention. To stop major crimes like drug peddling, provisions like Section 37 of the NDPS Act are required.
The appellant was allegedly the driving force behind the supply and transportation of drugs, according to the ASG.
JUDGEMENT ANALYSIS
The court noted in its ruling that a "liberal" approach should not be used while interpreting Section 37 of the NDPS Act in State of Madhya Pradesh v. Kajad [(2001) 7 SCC 673].
In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [(1994) 6 SCC 731], this court made some critical findings that have an impact on the current case while addressing the denial of bail to people accused of violating the NDPS Act. In light of the NDPS Act, particularly Section 37, this court must evaluate the appellant's request for release.
This court reiterated the same attitude in Shaheen Welfare Association v. Union of India [(1996) 2 SCC 616], saying that rigorous laws that limit the use of bail and judicial discretion are put in place so that investigations and cases can be resolved quickly.
According to the case's facts, ganja was retrieved from the four co-accused, including Nitesh Ekka, on September 28, 2015. On the advice of this Nitesh Ekka and based on his testimony, the current appellant was taken into custody. In addition to the confessional statement of the current appellant, the prosecution also cited Virender Singh @ Beerey's bank statements, who reportedly testified that money was sent to the appellant.
In contrast, the prosecution has not located any additional evidence from the appellant, and its claim that he is a mastermind is unsupported by any proof of major drug trading that would have logically appeared. In no other case has the prosecution established the appellant's involvement.
When the court is reasonably convinced that the accused is innocent after taking a prima facie look at the facts in the record (at the time the bail application is lodged), such specific requirements as those specified under Section 37 can be taken into account within constitutional bounds. Any other interpretation would result in a person accused of an offence covered by Section 37 of the NDPS Act being completely denied bail.
Given the requirement of Section 436A, which is applicable to offences under the NDPS Act as well, it cannot be argued that the grant of bail on the basis of an unreasonable delay in the trial is constrained by Section 37 of the Act in Union of India v. Rattan Malik [(2009) 2 SCC 624]. (ref. Satender Kumar Antil supra).
According to the Union Home Ministry's statement to Parliament, the National Crime Records Bureau reported that as of December 31, 2021, there were more than 5,54,034 prisoners lodged in jails, compared to the nation's overall capacity of 4,25,069 lakhs.
4,27,165 people were awaiting trial out of which 122,852 were convicted. The risk of "prisonisation," which the Kerala High Court defined in A Criminal Prisoner v. State as "a radical transformation" in which the prisoner:
“Loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Loss of independence, status, assets, dignity, or any sense of personal autonomy can cause psychological issues.”
Hon’ble Supreme Court accepts the appeal and the appellant is directed to be enlarged on bail.
Additional reading- Dayalu Kashyap Vs State of Chhattisgarh
CONCLUSION
The appellant has been in custody for over 7 years and 4 months, he was arrested when he was 23 years old and the progress of the trial has been at a snail’s pace.
The additional requirement that the court must be satisfied that the accused—who is by law presumed innocent—is not guilty must be interpreted reasonably in light of the general law on bails (Sections 436, 437, and 439, CrPC), which classifies offences based on their gravity and instructs that certain serious crimes must be dealt with differently when considering bail applications.
Because the loss to the accused in the event of an acquittal is irreparable, the courts must take these factors into consideration and make sure that trials—especially in situations where special laws implement strict provisions—are started and finished quickly.
