April 1, 2023 In Uncategorized


A Two Judge Bench of the Supreme Court comprising of Justice S. Ravindra Bhat and Justice Dipankar Datta passed a Judgment dated 28.03.2023  in a recent case of Mohd. Muslim@Hussain vs State (NCT of Delhi) Criminal Appeal @ Special Leave Petition (CRL) No.915 of 2023 and observed that the Appellant was entitled to bail as there was substantial delay in trial over 7 years and the Prosecution failed to produce on record any evidence against the Appellant.


(i) In the present case, the Police had received certain confidential information about possession of illegal drugs and narcotics on 28.09.2015 and thus, the Police conducted raid and arrested 4 persons, namely, (i) Nitesh Ekka, (ii) Sanjay Chauhan, (iii) Sharif Khan and (iv) Veerender Shakiyar / shakyar @Deepak for being in possession of 180 K.G. of Ganja.

(ii) On further investigation, Nitesh Ekka was taken to Chhattisgarh for identification of the co-Accused. The Accused, Nitesh Ekka disclosed the name of Hussain, the Appellant herein and three other persons involved in the offence of supplying Ganja and transfer of funds. Thereafter, the Police arrested the Appellant, aged 23 years, and registered an I.R. No.0148 of 2015 dated 28.09.2015.

(iii) The Police further filed a Chargesheet on 20.02.2016 before the Ld. Trial Court, wherein, various charges were framed against the Appellant and other co-Accused on 05.07.2016 under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) (Punishment for contravention in relation to cannabis plant and cannabis), 20 of NDPS Act (Punishment for allowing premises, etc., to be used for commission of an offence), 25 of NDPS Act (Punishment for abetment and criminal conspiracy), 29 of NDPS Act. As per the pleadings, two supplemental Chargesheets were also filed on 01.08.2018 and 08.11.2017.

(iv) Thereafter, the Appellant filed a Bail Application under Section 439 of the Code of Criminal Procedure 1973 (CrPC) (Special powers of High Court or Court of Session regarding bail) for grant of regular bail before the Ld. ASJ South East Court, Saket Court, New Delhi (Trial Court). The Ld. Trial Court rejected the said Bail Application, vide Order dated 08.06.2022, owing to gravity of the offence, severity of punishment and the role of the Appellant thereof.

(v) Aggrieved by the Ld. Trial Court’s Order dated 08.06.2022, the Appellant filed a Bail Application No.2675 of 2022 before the Delhi High Court seeking regular bail under Section 439 read with 482 Cr.P.C. (Saving of inherent powers of High Court). The Ld. Additional Public Prosecutor (APP) submitted that under Section 37 NDPS Act 1985 (Offences to be cognizable and non-bailable), the Appellant was not entitled to bail.

(vi) The Delhi High Court vide Order dated 08.09.2022 rejected the Appellant’s Bail Application and directed the Ld. Trial Court to expedite the trial within 6 months of the said Order.

Supreme Court Observations

Aggrieved by the Delhi High Court Order dated 08.09.2022, the Appellant filed Criminal Appeal @ Special Leave Petition (CRL) No.915 of 2023 before the Supreme Court. The Apex Court passed a Judgment dated 28.03.2023 and made the following observations:

  1. That the Appellant has been in custody for over 7 years and 4 months and the progress of the trial has been at a snail space, as 30 witnesses have been examined and 34 are yet to be examined.
  2. That speedy trial is an integral and essential part of the Fundamental Right to Life and Liberty guaranteed under Article 21 of the Constitution of India 1950 and that delay in trial amounts to violation of such Fundamental Rights.
  3. That the Supreme Court has in an earlier case of State of Madhya Pradesh v Kajad (2001) 7 SCC 673 observed that liberal approach should not be adopted while dealing with cases under Section 37 of NDPS Act.
  4. That the Apex Court has in another case of Legal Aid Committee (representing under trial prisoners) v Union of India 1994 6 SCC 731 observed that refusing bail on the one hand and delaying the trial of cases on the other hand is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the NDPS Act (Offences triable by Special Courts), Section 309 of CrPC (Power to postpone or adjourn proceedings) and Article 14 (Equality before law), 19 (Protection of certain rights regarding freedom of speech, etc), and 21 (Protection of life and personal liberty) of the Constitution.
  5. That the Supreme Court in Shaheen Welfare Association v Union of India (1994 (6) SCC 731) observed that the reason behind enacting stringent provisions that curtail the provisions of bail and restrict the judicial discretion is to ensure that investigation and trials are concluded swiftly.
  6. That the Apex Court has in another case of Satender Kumar Antil v Central Bureau of Investigation SLP (Crl.) No.5191 of 2021 observed that “To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.”
  7. That in the present case, Ganja was recovered on 28.09.2015 from 4 Accused and the present Appellant was arrested on behest of Nitesh Ekka.
  8. But apart from Nitesh Akka’s statement, the Prosecution had not recovered anything else from the Appellant and failed to place evidence against the Appellant to establish that he was the master mind.


Based on the aforesaid observations, the Supreme Court held that the Prosecution failed to establish the charges under NDPS Act against the Appellant and thus, the Appellant was entitled to grant of bail, subject to the conditions that the Ld. Trial Court may impose. Therefore, the Apex Court upheld the Delhi High Court Order dated 08.09.2022 and thereby, allowed the Appeal filed by the Appellant.

Suneel Kumar


The Indian Lawyer

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