NDPS | Bail is the Rule, Jail is the Exception: Himachal Pradesh High Court

In a significant ruling, the Himachal Pradesh High Court granted bail to Sumit Sharma, accused under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for alleged possession of intermediate quantity contraband (10.67 grams of heroin). The Court emphasized that prolonged incarceration and the unlikelihood of an expedited trial necessitate bail, invoking the principle that “bail is the rule, and jail is the exception.”

Justice Ranjan Sharma ruled: “The petitioner has been in custody for over one year and three months, and the trial is likely to take considerable time as only four of the 23 prosecution witnesses have been examined. Continued detention of the petitioner violates Article 21 of the Constitution, guaranteeing personal liberty and the right to a speedy trial.”

The Court underscored that the petitioner’s continued detention amounted to curtailment of his fundamental rights under Article 21 of the Constitution. It held that even under special statutes like the NDPS Act, prolonged incarceration without trial cannot be justified.

Citing the Supreme Court’s judgment in V. Senthil Balaji v. Deputy Director, Directorate of Enforcement (2024), the Court reiterated:

“The rigors of Section 37 of the NDPS Act must yield when there is no likelihood of the trial being completed in a reasonable time, and prolonged incarceration violates the constitutional right to liberty.”

The prosecution submitted that the case involves 23 witnesses, of which only four had been examined. The Court noted that the delay in trial was not attributable to the petitioner. Justice Sharma stated:

“The petitioner’s continued incarceration while the trial remains pending for an indefinite period would amount to punitive detention, which is impermissible under the law.”

The Court emphasized that the accused is presumed innocent until proven guilty and that bail should not be denied on mere allegations. It observed:

“Pre-trial detention has a substantial punitive content. Refusing bail amounts to punishing the accused without a verdict of guilt.”

The Court relied on Guddan alias Roop Narayan v. State of Rajasthan (2023), where it was held that punishment begins only after conviction, and bail must not be withheld as a form of punishment.

The State opposed bail, citing the petitioner’s involvement in six prior NDPS cases and other criminal cases. However, the Court clarified that mere pendency of cases or past criminal antecedents cannot be the sole basis for denying bail. It held:

“An accused’s involvement in prior cases is not a ground for denying bail in the absence of cogent evidence of misuse of prior bail or tampering with witnesses.”

Relying on Maulana Mohammed Amir Rashidi v. State of Uttar Pradesh (2012) and Prem Prakash v. Union of India (2024), the Court reiterated that past antecedents must be balanced against the petitioner’s right to liberty and the presumption of innocence.

The Court highlighted that the petitioner was accused of possessing an intermediate quantity of contraband (10.67 grams of heroin), which attracts less stringent punishment under Section 21(b) of the NDPS Act. It observed:

“While offences involving commercial quantities attract strict bail restrictions under Section 37, the same rigors do not apply to intermediate quantity offences. The petitioner’s bail must be considered in light of broader principles governing personal liberty and the right to a fair trial.”

No Adverse Evidence of Witness Tampering or Flight Risk
The Court noted that the State had failed to provide any evidence suggesting that the petitioner might tamper with witnesses, obstruct justice, or abscond if granted bail. It held:

“There is no material on record to justify the apprehension that the petitioner would misuse the bail. Adequate conditions can be imposed to ensure compliance.”

Granting bail to Sumit Sharma, the Himachal Pradesh High Court struck a balance between the accused’s fundamental rights and societal interests. It reaffirmed the principle that bail is a rule and jail an exception, even in NDPS cases, particularly where prolonged incarceration and delayed trials threaten the right to liberty and a fair trial.

Decision Date: January 15, 2025