The Punjab and Haryana High Court has affirmed that prolonged pre-trial incarceration in NDPS cases, even involving commercial quantities of narcotics, cannot justify indefinite detention when trial delays are inordinate. The judgment reinforces that Article 21 rights and Section 436-A of the CrPC prevail over the restrictive provisions of Section 37 of the NDPS Act when justice is unduly delayed.
Background & Facts
The Dispute
The petitioner, Makhan Singh @ Kalu, was arrested on 26.01.2024 in connection with FIR No. 30 dated 26.01.2024, registered at Police Station City Barnala, District Barnala, under Sections 21, 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was apprehended in possession of 480 vials of WINCEX and 500 tablets of Etiwill 0.5 MD, which were recovered from his conscious possession. He could not produce any license or permit for the contraband and was formally arrested at the spot. The investigation revealed that he was allegedly receiving the drugs from one Pritpal Singh alias Kali and supplying them wholesale to one Mamta, both of whom were named as co-accused.
Key Facts
- Recovery of commercial quantity of narcotics occurred on 26.01.2024
- Petitioner was arrested on the same date, 26.01.2024
- The challan was filed after completion of investigation, though the exact date is not specified
- As of the hearing, only one out of twenty prosecution witnesses had been examined
- Petitioner has remained in judicial custody for over two years as of 07.05.2026
- No evidence on record suggests petitioner has absconded, tampered with evidence, or committed further offences while in custody
Procedural History
- 26.01.2024: Arrest of petitioner following recovery of contraband
- Between 26.01.2024 and 07.05.2026: Continuous judicial custody without trial conclusion
- 06.05.2026: Judgment reserved
- 07.05.2026: Judgment pronounced and uploaded on the court website
- 07.05.2026: Writ petition under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, heard and decided
Relief Sought
The petitioner sought regular bail on grounds of prolonged incarceration exceeding two years, inordinate delay in trial, and the fact that only one of twenty prosecution witnesses had been examined. He argued that continued detention served no useful purpose and violated his fundamental right to liberty under Article 21 of the Constitution.
The Legal Issue
Can an accused in a case involving commercial quantity of narcotics under the NDPS Act be granted regular bail when the trial has been unduly delayed for over two years, despite the stringent conditions of Section 37 of the NDPS Act?
Arguments Presented
For the Petitioner
Learned counsel argued that the petitioner has been in custody for more than two years with no prospect of trial conclusion in the near future, as only one of twenty prosecution witnesses has been examined. He relied on Mohd. Muslim @ Hussain v. State (NCT of Delhi), Manmandal v. State of West Bengal, Rabi Prakash v. State of Odisha, and Santosh Pawar v. State of Chhattisgarh to contend that prolonged incarceration, especially when trial delays are systemic, overrides the statutory bar under Section 37 of the NDPS Act. He emphasized that Section 436-A of the CrPC applies to offences under the NDPS Act and mandates release on bail if the accused has been detained for half the maximum sentence prescribed. He further argued that there is no evidence of flight risk or likelihood of reoffending.
For the Respondent
The Additional Advocate General contended that the recovery of commercial quantity of narcotics triggers the strict rigours of Section 37 of the NDPS Act, which makes bail the exception rather than the rule. He argued that the gravity of the offence, the nature of the contraband, and the potential for the accused to reoffend or abscond justify continued detention. He did not dispute the delay in trial but maintained that statutory restrictions must prevail over procedural delays.
The Court's Analysis
The Court undertook a comprehensive review of the Supreme Court’s evolving jurisprudence on bail in NDPS cases marked by prolonged incarceration. It noted that while Section 37 of the NDPS Act imposes stringent conditions for bail, it does not create an absolute bar that supersedes constitutional rights or statutory safeguards under Section 436-A of the CrPC.
"The danger of unjustified imprisonment is that inmates are more likely to be hardened rather than reformed."
The Court cited Mohd. Muslim @ Hussain to affirm that the rigours of Section 37 cannot be invoked to deny bail when the delay in trial is inordinate and the accused has been incarcerated for a period exceeding two years. It further relied on Santosh Pawar, where the Supreme Court granted bail to an accused detained for 19 months in a commercial quantity case, holding that the prosecution’s failure to expedite trial cannot be visited upon the accused.
The Court emphasized that Section 436-A is a statutory mechanism designed to prevent prolonged pre-trial detention and applies to all offences, including those under the NDPS Act. It observed that the petitioner’s incarceration of over two years far exceeds the half-sentence threshold under Section 436-A, and that the trial’s glacial pace - only one witness examined out of twenty - renders continued detention unjustifiable.
The Court also rejected the State’s reliance on criminal antecedents or the nature of the offence as decisive factors, noting that no evidence was presented to suggest the petitioner would abscond or interfere with witnesses. The Court held that constitutional principles under Article 21 must prevail when statutory delays render detention arbitrary.
The Verdict
The petition was allowed. The petitioner is ordered to be released on regular bail upon furnishing personal and surety bonds to the satisfaction of the trial court. He shall not directly or indirectly intimidate, threaten, or induce any witness acquainted with the case. He must appear before the trial court on every hearing date unless exempted, surrender his passport, furnish details of his mobile number and Aadhaar card, and shall not change his mobile number during the pendency of the trial. The Court clarified that this order is strictly for bail purposes and does not prejudge the merits of the case.
What This Means For Similar Cases
Bail Is Not Denied Solely on Gravity of Offence
- Practitioners must now argue that Section 37 of the NDPS Act does not create an automatic bar to bail when trial delays exceed two years
- The burden shifts to the prosecution to demonstrate a real risk of flight or tampering, not merely rely on the nature of the offence
- Courts must apply Section 436-A CrPC as a mandatory safeguard, not a discretionary one
Trial Delay Is a Constitutional Issue, Not a Procedural One
- Prolonged pre-trial detention in NDPS cases now triggers Article 21 scrutiny
- Courts must actively monitor trial progress and consider bail when witnesses remain unexamined for extended periods
- Delay caused by prosecution inefficiency cannot be used to justify indefinite incarceration
Documentation of Trial Progress Is Critical
- Advocates must file affidavits or applications detailing the number of witnesses examined, dates of hearings, and reasons for adjournments
- Courts should record trial progress in bail orders to prevent future disputes
- A record of only one witness examined out of twenty, as in this case, sets a clear benchmark for future bail applications
