Conditional Liberty Must Override Statutory Embargo under Section 37 NDPS Act: Punjab & Haryana High Court Grants Bail for Commercial Quantity Contraband

“Prolonged Incarceration Militates Against the Most Precious Fundamental Right Under Article 21”: Punjab and Haryana High Court granting regular bail to an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, despite the recovery being of commercial quantity, which typically invites the stringent bar of Section 37 of the NDPS Act. Justice Anoop Chitkara observed that prolonged incarceration “generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution”, and thus, “conditional liberty must override the statutory embargo”.

The petitioner, Yuvraj alias Yuvi, was arrested on 3 October 2023, following a recovery of 71 loose Buprenorphine injections from his possession, alongside 350 grams of heroin recovered from the co-accused. As per the Forensic Science Laboratory (FSL) report, the quantity recovered from the petitioner contained Buprenorphine Hydrochloride, qualifying as commercial quantity, thereby attracting Section 37 of the NDPS Act, which imposes a twin condition bar on the grant of bail.

The petitioner, with no criminal antecedents, approached the Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking regular bail on the ground of prolonged custody and clean record.

The core issue before the Court was whether an accused, from whom a commercial quantity of narcotic substance is recovered, could still be granted bail under exceptional circumstances — namely, prolonged pre-trial incarceration — despite the bar under Section 37 of the NDPS Act.

Justice Chitkara held that: “The quantity allegedly involved in this case is commercial. Given this, the rigors of Section 37 of the NDPS Act apply in the present case.”

However, acknowledging the prolonged detention, he further observed: “The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

Referring to a custody certificate dated 1 April 2025, the Court noted: “The petitioner’s custody in this FIR is of 1 year, 5 months and 28 days.”
The Court undertook a detailed analysis of Supreme Court precedents, particularly cases where bail had been granted in NDPS matters involving commercial quantity, solely on the basis of prolonged incarceration and delayed trials. These included: “In Chitta Biswas v. State of West Bengal, the Hon’ble Supreme Court held that prolonged incarceration with partial examination of witnesses was sufficient ground to grant bail, even in cases involving codeine above commercial quantity.”

“In Najrul Islam v. State of West Bengal, bail was granted despite seizure of 100 bottles of Phensedyl syrup, due to more than one year of custody and delay in trial.”

The High Court clarified that it was not expressing any opinion on the merits of the case but was guided solely by the principle of constitutional liberty. It emphasized: “Given the petitioner’s pretrial custody is more than some of the judicial precedents mentioned above, the petitioner is entitled to bail under Article 14 of the Constitution of India.”

Further, in reinforcing the approach of balancing legal mandates and personal freedoms, the Court quoted from Mohammed Zubair v. State of NCT of Delhi: “The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them.”

The Court imposed stringent conditions to ensure that the grant of liberty does not lead to abuse of the process. One such condition stated: “The petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison.”

The order was made effective immediately upon uploading on the official website, with a cautionary note: “If the petitioner indulges in any non-bailable offense, the State shall file an application for cancellation of this bail... which shall be at liberty to cancel this bail.”

The High Court’s ruling underscores a constitutional recalibration of liberty and statutory restriction, especially in the context of the NDPS Act. While reaffirming that Section 37’s embargo is not absolute, it applied the principle that “bail jurisprudence must align with the realities of delay and fundamental rights”.

“This Court finds that continued pre-trial incarceration, without end in sight for trial conclusion, tips the balance in favour of conditional liberty under Article 21.”

The judgment is a clear articulation of the judicial trend to prioritize personal liberty in cases of excessive custody, while still respecting the seriousness of narcotics offences by imposing appropriate safeguards.

Date of Decision: 29 April 2025