NDPS Act | Bail Granted Despite Prior Conviction Due to Prolonged Custody : Punjab and Haryana High Court

The Punjab and Haryana High Court has established a significant precedent by granting bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in a NDPS Act case, despite the petitioner's prior conviction. The judgment underscores that prolonged custody without trial completion can outweigh the rigors of Section 37 of the NDPS Act, particularly when Article 21's right to speedy trial is violated. This ruling provides crucial guidance for bail applications in drug-related offenses where trials face unreasonable delays.

Background & Facts

The Dispute

The petitioner, Mohan, was arrested on 12.07.2023 under Section 20(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 20.5 kg of ganja. The prosecution alleged non-compliance with Sections 42 and 50 of the NDPS Act, including the absence of independent witnesses during search and seizure. Notably, the petitioner had a prior conviction in FIR No. 69/2017 under Sections 20-61-85 of the NDPS Act, which the State argued should disqualify him from bail.

Procedural History

The case progressed as follows:

• 12.07.2023: Petitioner arrested and FIR registered at Police Station Bahin, Palwal.
• 2023-2025: Petitioner remained in custody; only 5 of 17 prosecution witnesses examined.
• 2025: Petitioner filed the present bail application under Section 483 BNSS, citing prolonged custody and delayed trial.

Relief Sought

The petitioner sought regular bail, arguing:

1. Non-compliance with mandatory procedural safeguards under the NDPS Act.
2. Prolonged custody (over 2.5 years) without trial completion, violating Article 21.
3. Precedents from the Supreme Court in Nitish Adhikary @ Bapan v. State of West Bengal and Hasanujjaman v. State of West Bengal, where bail was granted despite NDPS Act offenses due to delayed trials.

The Legal Issue

The central question was whether Section 37 of the NDPS Act, which imposes stringent conditions for bail, could be relaxed when:

1. The accused has undergone prolonged custody without trial completion.
2. The accused has a prior conviction under the same statute.
3. The right to speedy trial under Article 21 is violated due to systemic delays.

Arguments Presented

For the Petitioner

The petitioner's counsel contended:

• Procedural violations: Sections 42 and 50 of the NDPS Act were not complied with, as no independent witnesses were present during search and seizure.
• Prolonged custody: The petitioner had been in custody for over 2.5 years, with only 5 of 17 witnesses examined, indicating an unreasonably delayed trial.
• Precedent reliance: Cited Nitish Adhikary @ Bapan v. State of West Bengal and Hasanujjaman v. State of West Bengal, where the Supreme Court granted bail to accused persons who had undergone 1.5 years of custody without trial completion.
• Article 21 violation: Argued that the right to speedy trial under Article 21 of the Constitution outweighed the rigors of Section 37 of the NDPS Act.

For the Respondent

The State's counsel opposed bail, arguing:

• Prior conviction: The petitioner was already convicted in FIR No. 69/2017 under the NDPS Act, which should disqualify him from bail.
• Gravity of offense: The recovery of 20.5 kg of ganja was a serious offense under Section 20(ii)(c) of the NDPS Act.
• Section 37 compliance: The stringent conditions under Section 37 were not met, as the petitioner posed a flight risk and could tamper with evidence.

The Court's Analysis

The Court conducted a nuanced analysis, balancing the rigors of Section 37 of the NDPS Act with the fundamental right to speedy trial under Article 21. Key aspects of the reasoning included:

1. Precedent Application: The Court relied heavily on the Supreme Court's rulings in Nitish Adhikary @ Bapan and Hasanujjaman, where bail was granted despite NDPS Act offenses due to prolonged custody without trial completion. The Court noted:

"In Nitish Adhikary @ Bapan, the accused had undergone custody for 1 year and 7 months, and in Hasanujjaman, the accused had been in custody for over 1 year and 4 months. In both cases, the Supreme Court granted bail without expressing views on the merits, emphasizing the right to speedy trial."

1. Prolonged Custody: The petitioner had been in custody for over 2.5 years, with only 5 of 17 witnesses examined. The Court observed that this delay was unreasonable and violated Article 21, warranting a relaxation of Section 37's rigors.

2. Prior Conviction: While the petitioner had a prior conviction under the NDPS Act, the Court held that this factor alone could not automatically disqualify him from bail, particularly when prolonged custody was a mitigating circumstance.

3. Section 37 Dilution: The Court acknowledged that Section 37 of the NDPS Act imposes stringent conditions for bail, including the requirement that the court must be satisfied that the accused is not guilty and will not commit further offenses. However, it held that prolonged custody without trial completion could justify a dilution of these rigors, as seen in the Supreme Court's precedents.

4. Article 21 Mandate: The Court emphasized that Article 21's right to speedy trial is a fundamental right that cannot be ignored, even in NDPS Act cases. It noted:

"The rigors of Section 37 of the NDPS Act can be diluted to an extent in view of the salutary provisions of Article 21, which guarantees the right to a speedy trial."

The Verdict

The Court allowed the petition and granted bail to Mohan, subject to the following conditions:

1. The petitioner must furnish bail bonds and surety bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate.
2. The petitioner must appear before the police station concerned on the first Monday of every month until trial completion and declare in writing that he is not involved in any other crime.
3. The petitioner must deposit an FDR of Rs. 2,00,000 with the Trial Court, which would be forfeited if he absconds or fails to appear without sufficient cause.

What This Means For Similar Cases

Prolonged Custody Can Outweigh Section 37 Rigors

Practitioners can now argue that prolonged custody without trial completion can justify bail even in NDPS Act cases, despite the stringent conditions under Section 37. Key takeaways:

• Article 21's right to speedy trial can override Section 37's rigors when delays are unreasonable.
• Courts may grant bail if the accused has undergone substantial custody (e.g., 1.5+ years) without trial completion, even with a prior conviction.

Prior Convictions Are Not Automatic Disqualifiers

• A prior conviction under the NDPS Act does not automatically disqualify an accused from bail if other mitigating factors (e.g., prolonged custody) exist.
• Practitioners should emphasize systemic delays and violation of Article 21 to counter arguments based on prior convictions.

Procedural Compliance Remains Critical

• While the Court granted bail despite procedural violations (e.g., lack of independent witnesses), practitioners should still challenge non-compliance with Sections 42 and 50 of the NDPS Act to strengthen bail applications.
• Highlighting procedural lapses can weaken the prosecution's case and support arguments for bail.