Naeem v. State NCT of Delhi

6. At the outset, it may be noticed that in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India and Others (supra), directions were issued by the Hon’ble Apex Court for release of undertrials on bail who stood incarcerated for a long period of time pending trial, as the same is violative of fundamental rights under Article 21 of the Constitution of India. While considering the question of grant of bail to the accused facing trial under NDPS Act, it was observed that though some amount of deprivation of personal liberty cannot be avoided in such cases, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 of the Constitution would receive a jolt. It was further held that after the accused person has suffered imprisonment, which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21. Accordingly, directions were issued that where the undertrial accused is charged with an offence under NDPS Act punishable with minimum imprisonment of ten years and a minimum fine of Rs.[1] lakh, such an undertrial shall be released on bail, if he has been in jail for not less than five years provided he furnishes bail in the sum of Rs.[1] lakh with two sureties for like amount.

7. It is pertinent to notice that the aforesaid directions were intended to operate as a one time measure and did not intend to interfere with the Special Court’s power to grant bail under Section 37 of NDPS Act. Further, the Courts were left free to exercise the power keeping in view the complaint of inordinate delay in the disposal of the pending cases. Observations in para 16 in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) may be beneficially quoted:

8. It may further be observed that Section 440 of the Code of Criminal Procedure, 1973 provides that amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. Further, sub-section 2 of Section 440 Cr.P.C. empowers the High Court or the Court of sessions for directing that the bail required by a Police Officer or Magistrate may be reduced. In view of above, the Court needs to keep into consideration that the conditions of bail do not become onerous or impossible of being complied with by accused and defeat the very object of grant of bail, if the accused is unable to furnish the surety bond for a long period of time and avail the benefit of bail. The surety amount is fixed, generally keeping in regard the nature and circumstances of offence, gravity of offence, financial resources and other relevant factors of accused, with objective of reasonably ensuring the presence of the accused during the course of trial. Reliance in this regard may be placed upon Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81 and Moti Ram v. State of M.P., (1978) 4 SCC 47.

9. Directions have also been issued by Hon’ble Apex Court in Satender Kumar Antil v. Central Bureau of Investigation and Another, (2022) 10 SCC 51 to undertake the exercise of finding out undertrial prisoners who are unable to comply with the bail conditions and take appropriate action under Section 440 Cr.P.C. for facilitating the release. It was also noticed that while insisting upon the sureties, mandate of Section 440 Cr.P.C. is to be kept in mind.

10. Further, with a view to ameliorate the problem of non-release of accused/undertrials due to their inability to furnish surety bonds, directions issued by Hon’ble Apex Court in SMWP (Criminal) No.4/2021 on 31.01.2023 may be beneficially reproduced: “With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications:

1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison 10 Department].

2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

3) NIC would make attempts to create necessary fields in the eprison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.

4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.

5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.

6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.

7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety. We order that the aforesaid directions shall be complied with.”

11. Reverting back to the instant case, the refusal to reduce the surety bond by learned Trial Court relying upon Pargan Ram Alias Nikka v. State (supra) is misplaced, since in the aforesaid case the benefit of bail was extended to the accused, in view of long incarceration since 10.03.2018 dehors the merits of the case. In the present case, petitioner was admitted to bail after consideration of the case on merits and not on account of prolonged incarceration. The petitioner has not been able to avail the benefit of bail despite order dated 27.07.2023 passed by learned Trial Court and is still in custody. The observations of Hon’ble Apex Court in para 16 in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India and Others (supra), clarifies that the directions are intended to operate as a one time measure and did not interfere with the Special Court’s power to grant bail under Section 37 of the NDPS Act. Thus, wherein the Court exercises the power to release the accused on bail on merits and if the circumstances so warrant, the surety bond can be suitably reduced. Considering the facts and circumstances, this Court is of the considered view that surety bond/personal bond be reduced and petitioner be accordingly admitted to bail subject to furnishing of personal bond in the sum of Rs.[1] lakh with one surety in the like amount, as prayed on behalf of the petitioner. The remaining terms and conditions imposed vide order dated 27.07.2023 by learned Trial Court shall remain unchanged. Petition is accordingly disposed of. Pending application, if any, also stands disposed of. A copy of this order be forwarded to the learned Trial Court as well as be circulated to Officers of District Judiciary for information.

JUDGE MARCH 05, 2024