GURBUX BHIRYANI Vs. J K HANDA

JUDGEMENT

(1.) This order will dispose off Cr. M (M) 2924 of 1990 filed by Gurbux Bhiryani and Cr. M. (M) 496 of 1991 filed by Rajni Kant Patel, both under Section 439 read .with Section 482 of the Code of Criminal Procedure for their release on bail.

(2.) The petitioners are facing trial under Sections 21 and 29 of NDPS Act (hereinafter called the Act) n the alligations that they and some other coaccused persons entered into and were parties to a criminal conspiracy to export heroin out of India in contravention of the provisions of the Act and sell the. same in the United States of America. Petitioner Gurbux Bhiryani has been further accused of having exported 3 kgs of heroin on or about November 19, 1987 through one U.S. Gala and Mrs. Manjulaben respectively whose services are alleged to have been procured by him with the help of co-accused Rajni Kant Patel and Pandya.

(3.) I have heard arguments advanced by learned Counsel for the parties. The main contention on behalf of the petitioners is that they are languishing in jail without a speedy trial. In spite of the fact that earlier this Court ordered on 15.2.90 in Cr. M. (M) 2089/89 that the trial Court shall try to complete the prosecution evidence within six months and if due to lapse of the prosecution, the prosecution evidence is not completed within six months, petitioners will be granted bail, there is practically no progress in the case and it is still at the stage of framing of charge against the petitioners and others. According to the learned Counsel this has completly violated the fundamental right of the petitioners under Article 21 of the Constitution of India and, therefore, inspite of the rigour of Section 37 of the Act dictating refusal of bail, the petitioners were entitled to be released on bail because of the fundamental right vested in them under Article 21 of the Constitution. It is further argued that Section 37 being a part of sub-servient legislation must give way to the protection available to the petitioners under Article 21 of the Constitution.