MP High Court flags CBN’s failure to produce a single witness for over two years, says undertrial detention without trial amounts to punishment

The applicant, Gurmit Singh, was arrested on 29 January 2024 in connection with Crime No. 04 of 2024 registered at Police Station CBN, Neemuch, for an offence under Section 8 read with Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). The prosecution alleged that, on 28 January 2024, a truck bearing registration No. PB-13-W-8205 was intercepted and the applicant and co-accused Surjeet Singh were found transporting 3,063.660 kilograms of poppy straw from Mandsaur, Madhya Pradesh, to Punjab; the commercial quantity is 50 kilograms.

The applicant contended that he had no criminal antecedents, was not the owner of the contraband or vehicle, had remained in custody for over two years, and that no chemical analysis report had been filed or witness examined.

The charge-sheet was filed on 26 July 2024, cognizance was taken on 29 July 2024, charges were framed on 5 August 2024, and a trial programme involving 13 prosecution witnesses was fixed on 7 August 2024.

Despite the matter being listed for evidence more than twenty times over a period exceeding two years, the prosecution had not examined even a single witness.

This was the applicant’s first bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 439 of the Code of Criminal Procedure, 1973.

1. Whether the applicant should be enlarged on regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, notwithstanding the restrictions under Section 37 of the NDPS Act, in view of his prolonged custody and the complete failure of the prosecution to commence evidence?

2. Whether the prosecution’s prolonged inaction in producing witnesses can justify the applicant’s continued pre-trial incarceration in a case involving commercial quantity of contraband?

3. Whether directions should be issued to secure the prompt conduct and conclusion of the trial?

The Court applied Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 439 CrPC, governing the High Court’s power to grant regular bail.

It considered Section 37(1)(b) of the NDPS Act, which imposes stringent conditions for bail where the accusation concerns specified serious offences and commercial quantities, including the requirement that the Court be satisfied that there are reasonable grounds for believing that the accused is not guilty and is unlikely to commit an offence while on bail.

The Court further relied on Sections 248 and 224 of the BNSS: Section 248 requires prosecution in a Sessions trial to be conducted by the Public Prosecutor, while Section 224 obliges the Court, on the date fixed for prosecution evidence, to proceed to take the evidence produced by the prosecution.

The Court emphasised that statutory restrictions under Section 37 cannot be applied so as to convert prolonged, unexplained pre-trial detention into punishment, and that criminal proceedings must conform to constitutional values, liberty, human dignity, and a fair and reasonably expeditious trial.

The Court found that the prosecution had completed the investigative and charging stages by July–August 2024 but had thereafter failed to examine any witness despite repeated opportunities and more than twenty listings for evidence.

It criticised the Public Prosecutor and investigating authorities for not ensuring the presence of witnesses and observed that the trial Court and prosecution could not remain passive while an under-trial prisoner continued in custody.

Although the quantity allegedly seized was commercial and therefore attracted the stringent requirements of Section 37 of the NDPS Act, the Court held that prosecutorial inaction could not, by itself, justify indefinite incarceration without trial.

Nevertheless, having regard to the very substantial quantity of alleged contraband, the Court did not grant bail immediately. Instead, it treated the lack of trial progress as a serious institutional failing, directed that the trial proceed on a day-to-day basis, and required the CBN authorities to secure the presence of witnesses so that the trial could be concluded within six months.

It requested the trial Court to conduct the proceedings on a day-to-day basis and directed CBN officials to ensure the presence of prosecution witnesses and facilitate conclusion of the trial within a further period of six months.

A copy of the order was directed to be forwarded to the CBN office at Neemuch, the concerned trial Court, and the Director General of the Narcotics Control Bureau for appropriate institutional action.