Prolonged Custody and Delay in Trial Warrant Bail: Punjab & Haryana High Court Grants Relief to NDPS Accused

Punjab & Haryana High Court granted bail to an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), citing prolonged pretrial custody and the right to a speedy trial under Article 21 of the Constitution. The court, while invoking established judicial precedents, relaxed the otherwise strict conditions of Section 37 of the NDPS Act and emphasized that the right to liberty cannot be ignored due to procedural delays.

The petitioner, Balwinder Singh, was apprehended on September 5, 2021, based on allegations of trafficking charas (8.950 kilograms) in conspiracy with a co-accused, Surinder Kumar. Following his arrest, 2 grams of heroin and an electronic weighing scale were reportedly recovered from his residence. The petitioner was charged under Sections 8, 20, 21, 7A, 29, and 60 of the NDPS Act.

Singh sought bail under Section 439 of the Code of Criminal Procedure, citing his prolonged incarceration of over three years and the slow pace of trial. Only nine out of twenty prosecution witnesses had been examined to date, and Singh contended that the delay violated his fundamental right to a speedy trial under Article 21 of the Constitution. The petitioner also highlighted that a co-accused, Surinder Kumar, had already been granted bail by the same court in November 2024.

Petitioner’s Arguments
The petitioner was a first-time offender with no prior criminal antecedents.
Mandatory procedural safeguards under Sections 42 and 50 of the NDPS Act were not complied with during the investigation.
There were no independent witnesses at the time of search and seizure, raising doubts about the prosecution's case.
The petitioner had been in custody since 2021, and with the slow pace of trial, the conclusion of proceedings was unlikely in the near future.
The court should follow the precedents set by the Supreme Court in Nitish Adhikary @ Bapan v. State of West Bengal (2022) and Hasanujjaman v. State of West Bengal (2023), where the accused were granted bail after prolonged custody.

The Union of India opposed the bail, citing the bar under Section 37 of the NDPS Act, which imposes strict conditions for granting bail in cases involving commercial quantities of contraband. The prosecution emphasized the serious nature of the allegations and argued that the petitioner’s release could compromise the case.

However, the prosecution conceded that Singh had no prior criminal record, had been in custody since 2021, and that the trial was moving at a sluggish pace, with only nine out of twenty witnesses examined.

Justice Jasjit Singh Bedi, delivering the judgment, relied on the Supreme Court’s rulings in Nitish Adhikary @ Bapan and Hasanujjaman, where bail was granted to accused persons in NDPS cases after prolonged incarceration of more than 1.5 years. The Court observed:

“In the instant case, the petitioner is stated to be in custody since 05.09.2021, and only 9 out of the 20 prosecution witnesses have been examined so far. He is also a first-time offender with no other case registered against him. In this situation, the rigors of Section 37 of the NDPS Act can be diluted to an extent in view of the salutary provisions of Article 21 of the Constitution of India, which provides for the right to a speedy trial.”

The Court noted that denying bail in such circumstances would not only contravene the petitioner’s fundamental rights but also defy the principles of fairness in judicial processes. It further underscored that a co-accused had already been granted bail under similar circumstances, thereby strengthening the petitioner’s case.

Bail Conditions Imposed
To ensure accountability and prevent misuse of bail, the Court imposed the following conditions:

The petitioner must provide bail and surety bonds to the satisfaction of the Chief Judicial Magistrate or Duty Magistrate.
The petitioner must appear at the local police station on the first Monday of every month until the trial concludes and submit a written declaration affirming that he has not engaged in any criminal activity.
The petitioner (or a representative on his behalf) must deposit a fixed deposit receipt (FDR) of ₹1,00,000 with the Trial Court. This FDR would be liable for forfeiture if the petitioner absconds or fails to comply with trial requirements.
Judicial Precedents Cited
The Court referred to two key precedents to substantiate its decision:

Nitish Adhikary @ Bapan v. State of West Bengal (2022): In this case, the Supreme Court granted bail to an NDPS accused after 1 year and 7 months of custody, emphasizing the right to a speedy trial and the absence of criminal antecedents.
Hasanujjaman v. State of West Bengal (2023): The Supreme Court granted bail to the accused, citing prolonged pretrial custody, and noted that the conclusion of trial within a reasonable time was improbable.
The High Court concluded that the principles laid down in these cases were applicable to Singh’s case, as he had already spent over three years in custody without significant progress in the trial.

The Punjab & Haryana High Court granted bail to Balwinder Singh, highlighting the need to balance the stringent provisions of the NDPS Act with the fundamental rights guaranteed under Article 21. The Court emphasized that while the NDPS Act is designed to combat the drug menace, prolonged incarceration without trial undermines the core tenets of justice and fairness.

The case underscores the judiciary’s role in safeguarding constitutional rights while ensuring that the justice system does not disproportionately penalize individuals awaiting trial. The decision also reiterates the importance of judicial oversight in cases involving procedural delays and prolonged custody.

Date of Judgment: December 9, 2024