What was the case?

On 28 March, a bench of Justices Ravindra Bhatt and Dipankar Datta directed that an undertrial booked under the NDPS Act nearly seven-and-a-half years ago for possession of cannabis be released on bail.

NDPS is an exception to the ordinary rules for granting bail. Under Section 37 of the Act, for a court to grant bail it has to be satisfied that “that there are reasonable grounds for believing that he is not guilty of such an offence” and that upon release, “isn’t likely to commit any offence.” This high bar, requiring the accused to prove innocence at the time of seeking bail, ensures getting bail under the law is virtually impossible for certain offences.

Now, the SC has said that the condition seeking the court’s satisfaction to the extent that an accused is not guilty of an offence “has to be interpreted reasonably.”

In a 2008 verdict in ‘Vaman Narain Ghiya v. State of Rajasthan’, the Supreme Court has upheld the stringent bail provisions under NDPS by “balancing two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest.”

“They are, at the same time, upheld on the condition that the trial is concluded expeditiously,” the present ruling said.

What does undue delay mean in law?

In the current case, the SC recorded that the accused Mohammad was in custody “for over 7 years and 4 months” and the progress of the trial had been at a snail’s pace, “with 34 witnesses remaining to be examined still”.

The Court said that the stringent conditions under Section 37 of the NDPS Act cannot override the general law for granting bail for undue delay in the trial.

Section 436A of the Code of Criminal Procedure requires an accused to be granted bail if the trial is not concluded within specified periods. Moreover, the expression “reasonable grounds” used in Section 37 is not defined in the statute, thereby widening the scope of judicial interpretation.

Section 436A of the CrPC provides, “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.”

However, this is subject to the fact that the court may, after hearing the Public Prosecutor and for reasons given in writing, order the continued detention of the accused for longer than one-half of the said period or release him on bail.

Section 436A also requires that no person shall be detained during the period of investigation, inquiry, or trial for more than the maximum period of imprisonment provided for the offence.

In the landmark 1979 ruling in ‘Hussainara Khatoon v. State of Bihar’, the SC recognised the right to a speedy trial as “implicit in the broad sweep and content of Article 21”. “No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21,” the court had said. In the current ruling, the court also spoke of the dangers of “unjust imprisonment” which puts the inmates at risk of “prisonisation”, a “radical transformation” by which a prisoner loses his identity.

When bail is exception, not rule

Legislations which prescribe an alternate criminal law framework, such as the NDPS Act, Unlawful Activities Prevention Act and the Prevention of Money Laundering Act make bail the exception, rather than the rule.

In its 2021 decision in ‘Union of India v. K. A. Najeeb’, a three-judge bench led by Justice NV Ramana had granted bail to an accused facing incarceration for an extended period “with little possibility of early completion of trial” under the UAPA. Section 43-D of UAPA, reverses the burden of proof on the accused and says that a court can reject bail if a prima facie case exists against the accused.