Article 21 of the Constitution Overrides Section 37 NDPS Act in Cases of Prolonged Incarceration Caused by Prosecution Lapses: Kerala High Court

Where Delay is Solely Attributable to the Prosecution, Bail Must Be Considered Despite Commercial Quantity Involved - High Court of Kerala addressing the delicate balance between the statutory embargo under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the fundamental right to personal liberty enshrined under Article 21 of the Constitution. Justice P.V. Kunhikrishnan held that "in cases where delay in trial is solely due to the laches of the prosecution, personal liberty guaranteed under Article 21 will override the restrictions under Section 37(1)(b) of the NDPS Act." 
 
The case arose from Crime No. 927/2023 registered at Pozhiyoor Police Station, Thiruvananthapuram, in which the petitioner, Said Muhammed, a 26-year-old resident of Vamanapuram, was arraigned along with other co-accused for offences under Sections 20(b)(ii)(A), 22(c), and 25 of the NDPS Act. According to the prosecution, 2.03 grams of ganja and 175 units of methamphetamine—a commercial quantity—were seized from a vehicle in which the petitioner was allegedly present. The first accused reportedly fled the scene, and the petitioner was arrested on October 31, 2023, and remained in judicial custody thereafter. 
 
 The petitioner’s counsel argued that the statutory restrictions on bail under Section 37 of the NDPS Act can be relaxed where the trial has been unduly delayed due to prosecution’s failure, relying on the Supreme Court decisions in Ankur Chaudhary v. State of Madhya Pradesh [2024 LiveLaw (SC) 416], Nitish Adhikary @ Bapan v. State of West Bengal [SLP (Crl.) No.5769/2022], and Hasanujjaman v. State of West Bengal [SLP (Crl.) No.3221/2023]. 

Quoting from Ankur Chaudhary, the Court noted: “Failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 
 
 
The Public Prosecutor opposed the plea, citing the seriousness of the offence and the fact that commercial quantity of contraband was involved. 
 
Nonetheless, the Court underscored that the petitioner had been in custody for over 17 months, and that the trial was being prolonged due to the prosecution’s own procedural failures, particularly its defective application under Section 311 Cr.P.C. to summon additional witnesses without showing valid reasons. 
 
Quoting its own precedent in Shuaib A.S v. State of Kerala [2025 SCC OnLine 618], the Court observed: “In a case where trial could not be completed due to the absolute laches on the part of the prosecution, bail plea at the instance of the accused on the said ground is liable to be considered in suppression of the rider under Section 37(1)(b) of the NDPS Act, in tune with Article 21 of the Constitution of India.” 
 
The judgment stressed that in such instances, “the decisive factor” is the source of delay. Where the accused has no role in prolonging the proceedings and the delay is “the sole contribution of the prosecution,” Article 21 protections override the statutory embargo under the NDPS Act. 
 
“In such a case, in consideration of the personal liberty of the petitioner guaranteed under Article 21... the petitioner, who has been in custody from 29.01.2022, is liable to be released on bail.” 
 
 The Court further clarified that “dilatory tactics... or even negligible liability” on part of the accused would disqualify them from such relief, but where “even remote possibility or mere impossibility” is absent, Article 21 must prevail. 
 
Although the Court did not directly grant bail, it left the door open for the petitioner, stating: 
 
“The petitioner is free to file a bail application before the Jurisdictional Court... and the Court will consider the same in the light of the principles laid down by the Apex Court and this Court.” 
 
 It directed that such application be decided within two weeks, taking into account all the contentions and precedents raised. 
 
Date of Decision: 27 March 2025