Article 21 Prevails Over NDPS Act’s Section 37 Restrictions in Cases of Prolonged Incarceration: Delhi High Court

Delhi High Court granted regular bail to the petitioner, Zakir Hussain, who had been in custody for over 2.5 years under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Justice Jasmeet Singh emphasized that the right to a speedy trial under Article 21 of the Constitution cannot be overridden by the stringent bail provisions under Section 37 of the NDPS Act. Observing significant delays in the trial and procedural lapses, the Court directed Hussain’s release on bail, with conditions to ensure compliance during the trial.

“Restrictions Under Section 37 of NDPS Act Cannot Outweigh Article 21’s Guarantee of a Speedy Trial”

The Delhi High Court’s judgment is a significant ruling that balances the NDPS Act’s stringent bail provisions with the constitutional right to a speedy trial. The petitioner, arrested in July 2022, was accused of possession of 2.615 kg of opium, which is classified as a commercial quantity under the NDPS Act. Despite the seriousness of the allegations, the Court highlighted the importance of fundamental rights, procedural fairness, and prolonged incarceration without trial as crucial factors in granting bail.

On July 17, 2022, a secret informer tipped off the police about a drug delivery in the Dhaula Kuan area of Delhi. Acting on this information, the police organized a raid, apprehending Zakir Hussain, along with two co-accused. While 2.615 kg of opium was allegedly recovered from Hussain’s bag, 0.510 grams of opium was recovered from another co-accused, Firoz. No contraband was recovered from the third co-accused, Munsad.

The petitioner was arrested the following day, and the police filed a chargesheet under Sections 18, 21, 25, and 29 of the NDPS Act. Hussain sought bail citing prolonged incarceration, procedural lapses, and non-compliance with statutory safeguards during the investigation. After his bail application was rejected by the trial court on February 6, 2024, Hussain filed this petition before the Delhi High Court.

Prolonged Incarceration Violates Article 21

The Court acknowledged that Section 37 of the NDPS Act imposes stringent conditions for granting bail. However, it emphasized that Article 21 of the Constitution, which guarantees the right to a speedy trial, takes precedence in cases of prolonged incarceration. Citing the Supreme Court’s ruling in Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352, the Court held:

“When stringent provisions for bail are enacted, they are upheld on the condition that trials are concluded expeditiously. Prolonged incarceration without trial renders these restrictions unconstitutional.”

Noting that Hussain had been in custody for over 2.5 years and none of the 22 prosecution witnesses had been examined, the Court concluded:

“Article 21 of the Constitution will prevail over the restrictions under Section 37 of the NDPS Act in cases of prolonged incarceration, especially when the trial is unlikely to conclude soon.”

Delay in Sending Samples: Procedural Irregularity, Not Fatal

The Court examined the 13-day delay in sending the seized samples for forensic analysis, which the petitioner claimed violated Section 52A of the NDPS Act. Referring to Narcotics Control Bureau v. Kashif, 2024 SCC OnLine SC 3848, the Court noted:

“Any procedural lapse or delayed compliance under Section 52A is not fatal to the trial. Such delays amount to procedural irregularities and must be evaluated holistically during the trial to determine whether serious prejudice was caused to the accused.”

While dismissing this argument as a standalone ground for bail, the Court allowed the petitioner to raise it during the trial.

Compliance with Section 50 Upheld

The petitioner challenged the notice issued under Section 50 of the NDPS Act, arguing that it referred to “any Magistrate” instead of the “nearest Magistrate.” The Court, relying on the Supreme Court’s decision in State (NCT of Delhi) v. Mohd. Jabir, held:

“The use of the word ‘any’ Magistrate does not negate compliance with Section 50. What is essential is that the accused is informed of their right to be searched before a Magistrate or Gazetted Officer.”

The Court found that the petitioner was adequately informed of his rights, and he declined to exercise the option of being searched before a Magistrate or Gazetted Officer.

Non-Joinder of Independent Witnesses Raises Doubts

The Court expressed concern over the prosecution’s failure to include independent witnesses or videography of the raid, despite the raid being conducted at a crowded location (Dhaula Kuan). It observed:

“The absence of independent witnesses is not fatal to the case but must be justified by the prosecution. Coupled with the lack of videography, this raises reasonable doubts that must weigh in favor of the petitioner during bail consideration.”

Petitioner’s Criminal Antecedents and Co-Accused’s Bail

The Court noted that Hussain had no prior convictions under the NDPS Act and had been acquitted in a previous NDPS case in 2019. Further, one co-accused, Munsad, had already been granted bail. The Court observed that granting bail to Hussain on similar grounds would not prejudice the trial.

The Delhi High Court granted bail to Zakir Hussain, observing that his prolonged incarceration and the delay in trial violated his fundamental rights. The Court directed the petitioner to furnish a personal bond of ₹20,000 with one surety and imposed several conditions to ensure his compliance during the trial.

The Court clarified: “The observations herein are limited to deciding the bail application and shall not affect the merits of the trial.”

This judgment highlights the judiciary’s role in balancing the stringent provisions of the NDPS Act with constitutional guarantees under Article 21. The Delhi High Court reaffirmed that prolonged incarceration without trial cannot be justified, even under special statutes like the NDPS Act, and emphasized the need for timely trials to uphold justice.

Date of Decision: January 22, 2025