Bail Cannot Be Denied for Prolonged Custody When Trial Hasn’t Moved an Inch: Punjab & Haryana High Court Grants Regular Bail In NDPS

"Incarceration for Over a Year Without Commencement of Trial Justifies Bail, Especially When Offences Are Below Commercial Quantity and Co-Accused Are Already Out", In a notable ruling Punjab and Haryana High Court granted regular bail to petitioners Rinku Thapar and Divyam, arrested in connection with a case involving alleged offences under the NDPS Act, the Arms Act, and the Wildlife Protection Act, citing prolonged pre-trial incarceration, absence of commercial quantity recovery, and parity with co-accused already enlarged on bail.

Justice Sanjay Vashisth, while allowing the second bail petitions of both accused, made a pointed observation on the failure of the prosecution to begin trial despite framing of charges and submission of charge sheet, holding:

"Trial is yet to commence even after charges have been framed and investigation is complete. Continued incarceration serves no purpose when liberty is at stake and there’s no statutory bar."

The bail was granted under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which governs criminal procedure, succeeding the CrPC.

No Recovery of Narcotics From Rinku Thapar, and Only 381 Grams of Charas From Divyam — Not a Commercial Quantity

The Court highlighted the absence of recovery of any narcotics from Rinku Thapar, and noted that only 381 grams of charas were recovered from Divyam, well below the commercial threshold of 1 kilogram as defined under Section 21(c) of the NDPS Act. Justice Vashisth observed:

"Only 381 grams of charas has been recovered from petitioner Divyam, which is much less than the commercial quantity...the plea for bail deserves to be considered by taking a moderate view."

This factual distinction made the bar under Section 37 of the NDPS Act inapplicable, as it does not operate in cases involving less than commercial quantity, enabling the Court to assess the matter under ordinary bail principles.

Recovery of Arms and Wildlife Articles From Rinku Thapar Does Not Attract Bail Bar Under NDPS Act

Although from petitioner Rinku Thapar’s premises a wide array of items was recovered — including arms and ammunition, wildlife articles (deer skin and horns), ₹6,18,780 allegedly as drug money, and valuables such as gold, gadgets, and four vehicles — the Court noted that no contraband drug was recovered from him and that his case does not fall under the bar created by Section 37 of the NDPS Act.

The Court clarified:

"There is no recovery of any narcotic substance, punishable under the NDPS Act, from petitioner-Rinku Thapar. Bail cannot be withheld solely on the strength of other recoveries when no direct involvement under NDPS is shown."

Additionally, the Wildlife Protection Act, 1972, and the Arms Act, 1959, do not contain any bar to bail analogous to Section 37 of the NDPS Act, making the case open to judicial discretion.

“Parity Is Not a Legal Nicety — It’s a Constitutional Imperative in Bail Jurisprudence”

A key factor considered by the Court was parity with similarly situated co-accused, many of whom had already been granted bail by the High Court on 07 May 2025. The Court recorded:

"Seven co-accused — namely Chandan Sharma, Harvinder Singh, Aakash Sharma, Arwinder Singh @ Gavi, Kamal Kumar, Vishal Singh @ Raja and Ankush Bhatti — have already been granted regular bail. Petitioners’ case is on similar footing."

Parity remains a foundational principle in bail jurisprudence, ensuring equal treatment under Article 14 of the Constitution, unless distinguishing facts emerge, which the State failed to show in this case.

“Liberty Cannot Be Sacrificed at the Altar of Prosecution Delay” — 42 Witnesses, Trial Not Begun

The Court heavily weighed the prolonged incarceration of both petitioners — over one year and two months — without any witness examined yet, despite charges having been framed on 10 December 2025. Justice Vashisth observed:

"Trial is likely to be prolonged with 42 witnesses cited by the prosecution. Continued custody, in such circumstances, infringes the right to personal liberty when investigation is already complete."

This reiteration of the constitutional mandate under Article 21 (right to life and personal liberty) is in line with numerous Supreme Court precedents that stress bail, not jail, especially when no likelihood of early conclusion of trial exists.

State’s Opposition on Grounds of “Gang Operation” and “Drug Money” Rejected in Absence of Specific Material

The State of Punjab, represented by the Additional Advocate General, vehemently opposed the petitions on grounds of seriousness of offence, claiming the petitioners were part of a gang operating drug trade, arms, and wildlife trafficking, with recovery of large cash and weapons. However, the Court found no conclusive material or prior criminal record linking the petitioners to such gang activity or any prior offences.

Justice Vashisth clarified:

"It is undisputed that the petitioners are not involved in any other criminal case in their past career...bail is justified in the absence of specific and proven allegations of habitual or organised crime."

The Court was also critical of procedural flaws in the investigation noted by the defence, including possible ante-timed FIR and failure to verify the source of recovered cash and the background of some co-accused, though it left such matters to be decided at trial.

Bail Allowed — Trial Court to Decide Case Independently Without Influence

While allowing the bail petitions, the Court carefully added that none of the observations made shall affect the merits of the case, directing the Trial Court to:

"Proceed with the trial independently and expeditiously, uninfluenced by any observation herein."

Both petitioners were directed to be released on bail upon furnishing adequate surety/bail bonds to the satisfaction of the Trial Court/Magistrate concerned.

This ruling marks yet another affirmation by the Punjab & Haryana High Court that prolonged pre-trial detention, in the absence of concrete bar or risk of tampering with evidence, cannot be justified, especially when the case lacks direct recovery of commercial quantity under the NDPS Act and when co-accused are already on bail.

The judgment recognizes that bail jurisprudence under criminal law must evolve in light of liberty, fairness, and equality, ensuring that bail is not withheld as punishment before conviction, especially when trials remain stalled and incarceration becomes punitive.

Date of Decision: 23 December 2025