ANGREJ SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) LEARNED Single Judge (Hon'ble N. L. Tibrewal J.) has made a reference to the larger Bench as follows : " (1) Whether an accused facing trial of an offence punishable for a term of imprisonment, for five years and more under the NDPS Act can be released on bail by the 'special Court' or the 'high Court' on the ground of delay in the trial inspite of the limitations prescribed by S. 37 (l) (b) of the Act ? (ii) If question No. 1 is decided in the affirmative then what should be the guidelines in granting bail ?"

(2.) BEFORE we proceed to deal with the aforesaid questions, we would like to observe that the same learned Judge in another case Bherulal V. State of Rajasthan S. B. Cr. Misc. IVth Bail Application No. 4252/91 decided on January 10, 1992 had allowed bail in a case where the accused was charged of being in possession of 90 Kg. opium and he was in custody for last 21 months. But so far as the present case is concerned, it is a case where the accused petitioner is said to have been found in possession of 10. 8 Kg. opium and was in custody for more than 22 months for which the learned Judge has made a reference of the aforesaid questions to this court. Learned Judge, therefore, was granting bail on the ground of delayed trial even in the case of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act) where the quantity of opium was much more than in the present case. Therefore, in our opinion, the reference should not have been made and we could have refused to answer the same, but to put the controversy to an end we answer the two questions referred to us. We may also state that various Benches of this Court including the learned Judge who has made the reference, have been granting bail in the cases of NDPS Act on the ground of delayed trial.

(3.) IT will be seen from a perusal of Article 21 of the Constitution of India that no person shall be deprived of his life or personal liberty except according to procedure established by law. When on the ground of delayed trial by virtue of Article 21 of the Constitution, there being no provision in the Code of Criminal Procedure, an accused becomes entitled for discharge or acquittal as the case may be, speedy trial being a fundamental right of the person, we fail to understand as to why on the ground of delayed trial an accused cannot be released on bail by attracting Article 21 of the Constitution. In a bigger thing, small thing is always included. Therefore, when on the ground of delayed trial the accused can be discharged or acquitted, as the case may be, he can also claim bail, the matter of bail being procedural matter, and the accused can be, released on bail, if he is not at fault for the delay, if any, in the trial of the case.