*Grants bail to trucker after 6 yrs in custody
Excelsior Correspondent
JAMMU, Oct 7: In a significant ruling reinforcing the constitutional right to a speedy trial, the High Court of Jammu & Kashmir and Ladakh has granted bail to a truck driver who had spent nearly six years in custody in connection with the alleged transportation of commercial quantity of poppy straw, holding that the rigours of the Narcotic Drugs and Psychotropic Substances (NDPS) Act cannot override the fundamental right to personal liberty guaranteed under Article 21 of the Constitution.
Justice Rajesh Sekhri, while allowing the bail application of Gurdev Singh, observed that “prosecution cannot be allowed to invoke the stringent provisions of Section 37 of the NDPS Act in perpetuity and dilute the fundamental right of the applicant to speedy trial and personal liberty”.
The applicant, a resident of Punjab, was arrested on December 11, 2019, after police at Supwal (Samba) intercepted a truck (UP38AT/7396) carrying apples and recovered 16 plastic bags containing 370 kg of poppy straw concealed behind fruit boxes.
A case was registered under Sections 8/15/25/29 of the NDPS Act at Police Station Samba.
During investigation, police claimed that the accused had deliberately underloaded the truck with apples to facilitate transportation of the contraband from Pulwama (Kashmir) to Punjab. Another accused, Rashid Ahmed Thoker of Pulwama, was also arrested after allegedly revealing that the poppy straw belonged to a transporter, Mukhtiar Ahmed Bhat, whose trucks had earlier been caught with narcotics.
After over five years of custody, Gurdev Singh approached the trial court seeking bail under Section 436-A of the CrPC (now replaced by Section 479 of the Bharatiya Nagarik Suraksha Sanhita), citing prolonged incarceration. The trial court, however, rejected his plea, holding that under the new BNSS provision, the undertrial was required to complete half of the maximum prescribed punishment (20 years) to be eligible for bail.
Challenging this interpretation, the applicant argued before the High Court that the trial court’s approach was superficial and vacuous and contrary to the spirit of the beneficial provisions meant to protect undertrials from indefinite detention.
Justice Sekhri, while examining the case, referred to landmark rulings including Supreme Court Legal Aid Committee Vs Union of India and “Narcotics Control Bureau Vs Lakhwinder Singh” to underline that prolonged incarceration of undertrials violates Article 21 of the Constitution.
The High Court noted that despite six years of custody, the prosecution had so far examined only nine witnesses out of the total fifteen, and at the existing pace, the trial was likely to take considerably more time.
“In such circumstances, and in view of the salutary provisions of Article 21 of the Constitution, prosecution cannot be allowed to invoke stringent provisions of Section 37 NDPS Act in perpetuity”, the High Court said, adding “while the NDPS Act imposes strict conditions for bail, the constitutional right to liberty and a fair, timely trial cannot be subordinated to procedural rigour”.
The High Court also clarified that the beneficial provisions of Section 479 BNSS, which allow release of first-time offenders on bail after undergoing one-third of the maximum sentence, apply retrospectively to pending cases, as directed by the Supreme Court.
Accordingly, the High Court ordered Gurdev Singh’s release on bail upon furnishing two sureties of Rs 1 lakh each and a personal bond of the like amount, subject to several conditions – including that he shall not leave the jurisdiction of the trial court, shall not tamper with prosecution witnesses, and must appear on all dates of hearing.
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