The Allahabad High Court has affirmed that the fundamental right to liberty under Article 21 of the Constitution takes precedence over the restrictive bail provisions of Section 37 of the NDPS Act when trial delays are inordinate. This ruling reinforces the principle that prolonged incarceration without timely adjudication cannot be justified by statutory rigidity, even in serious drug offences.
Background & Facts
The Dispute
The applicant, Akhtar, was arrested on 19.04.2026 in connection with Crime No. 127 of 2026 registered at Police Station Rorawar, District Aligarh, under Sections 109(1), 351(2), 352, 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Sections 8, 20, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The case stems from the recovery of 26.075 kg of ganja from a vehicle in which the applicant and co-accused Israel were travelling.
Key Facts
- The ganja was allegedly recovered from 26 packets.
- Only one packet was sampled for forensic analysis, in alleged violation of Rule 10 of the NDPS Rules, 1985, which mandates sampling from each packet.
- The recovery was conducted in the presence of a gazetted police officer and videographed, as required under Section 50 of the NDPS Act.
- The applicant has a prior criminal record involving five cases, including one under the NDPS Act, and is currently on bail in all of them.
- The applicant has been in judicial custody since 19.04.2026, with no trial date set for conclusion.
Procedural History
- 19.04.2026: Applicant arrested and remanded to judicial custody.
- 26.04.2026: Charge sheet filed by Police Station Rorawar.
- 15.05.2026: First appearance before the trial court; bail denied.
- 28.05.2026: Bail application filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023.
- 29.05.2026: Hearing before the High Court; order passed on the same day.
The Parties' Positions
Relief Sought
The applicant sought bail pending trial, arguing that his continued incarceration was unjustified due to the absence of a foreseeable trial timeline, procedural irregularities in evidence collection, and his willingness to comply with bail conditions.
The Legal Issue
The central question was whether Section 37 of the NDPS Act, which imposes stringent conditions for bail in drug offences, can override the fundamental right to liberty under Article 21 of the Constitution when the trial is likely to be unduly prolonged due to court backlogs.
Arguments Presented
For the Appellant/Petitioner
Learned counsel argued that the applicant’s prolonged detention without a realistic prospect of trial violates his right to personal liberty under Article 21. It was submitted that the recovery process was defective under Rule 10 of the NDPS Rules, as only one of 26 packets was sampled, undermining the evidentiary integrity of the case. The applicant’s prior criminal record, while noted, was countered by his consistent compliance with bail conditions in pending cases. Counsel relied on Union of India v. Shiv Shanker Kesari and Nadeem Ahmad v. State of West Bengal to assert that the constitutional mandate of liberty cannot be subordinated to statutory restrictions when trial delays are systemic.
For the Respondent/State
The Additional Government Advocate contended that the recovery was lawful under Section 50 of the NDPS Act, with proper documentation and videography. It was argued that the quantity of ganja (over 26 kg) falls under the commercial scale threshold, making the offence serious and non-bailable under Section 37. The applicant’s prior NDPS conviction and multiple pending cases were cited as indicators of recidivism, justifying denial of bail. The State maintained that the statutory bar under Section 37 must be strictly applied to deter drug trafficking.
The Court's Analysis
The Court acknowledged the seriousness of the offence and the statutory framework under Section 37 of the NDPS Act, which generally denies bail unless the court is satisfied that there are reasonable grounds for believing the accused is not guilty and will not commit any offence while on bail. However, the Court emphasized that these provisions are not absolute and must yield to the overriding constitutional guarantee of personal liberty under Article 21.
"The larger mandate of Article 21 of the Constitution of India shall prevail over Section 37 of the NDPS Act."
The Court noted that the applicant had been in custody for over a month with no indication of an early trial date, a situation exacerbated by the systemic pendency of cases in the lower judiciary. The Court further observed that while the recovery was procedurally compliant under Section 50, the sampling irregularity under Rule 10 raised legitimate concerns about evidentiary reliability, though it did not decide the merits of the case.
The Court distinguished Shiv Shanker Kesari and Nadeem Ahmad as directly on point: both held that when trial delays are prolonged and the accused has not been a flight risk or a threat to society, bail must be granted even under the NDPS Act. The Court rejected the notion that prior criminal history alone justifies denial of bail, particularly where the accused has consistently complied with bail conditions in other cases.
The Court clarified that its order was strictly limited to the bail stage and did not prejudge the evidence or the outcome of the trial.
The Verdict
The bail application was allowed. The applicant, Akhtar, shall be released on bail upon furnishing a personal bond of Rs. 50,000 with two sureties each in the like amount. He must comply with five conditions: (i) no contact or inducement to witnesses; (ii) no intimidation of prosecution witnesses; (iii) personal appearance at key trial stages (opening, framing of charge, Section 351 BNS statement); (iv) no adjournment requests when witnesses are present; and (v) presence before the trial court on all dates, personally or through counsel. Breach of any condition shall result in immediate cancellation of bail. The Court clarified that this order does not affect the trial court’s independent evaluation of evidence.
What This Means For Similar Cases
Article 21 Overrides NDPS Bail Restrictions in Delayed Trials
- Practitioners may now invoke Article 21 to argue for bail in NDPS cases where trial delays exceed six months without a realistic trial date.
- Courts must conduct a balancing test: seriousness of offence vs. duration of custody vs. accused’s compliance history.
- Prior convictions under NDPS do not automatically disqualify bail if the accused has not violated previous bail conditions.
Sampling Irregularities Under Rule 10 Are Relevant to Bail Decisions
- While not decisive on guilt, failure to sample all packets under Rule 10 of the NDPS Rules may be raised to challenge evidentiary reliability during bail hearings.
- Such defects, when combined with prolonged custody, strengthen the argument for liberty under Article 21.
- Defence counsel should document and formally raise sampling violations in bail applications, even if not yet raised in trial.
Bail Conditions Must Be Specific and Enforceable
- The Court’s five-part conditions set a template for future NDPS bail orders: no witness tampering, mandatory court appearances, no adjournment abuse, and clear consequences for breach.
- Lawyers should draft undertakings in line with this order to ensure enforceability and avoid discretionary interpretation by trial courts.
