Prolonged Incarceration Militates Against Article 21; Conditional Liberty Must Override NDPS Bar — Punjab & Haryana High Court Grants Bail to NDPS Accused Despite Commercial Quantity Recovery

Punjab and Haryana High Court granted bail to an accused booked under Section 20(b)(ii)(C) of the NDPS Act involving recovery of 106.9 kg of ganja. The Court held that when pre-trial incarceration exceeds reasonable limits and trial is nowhere near completion, the rigors of Section 37 of the NDPS Act cannot trump the fundamental rights guaranteed under Article 21 of the Constitution. The Court emphasized, “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.”

The case arose out of an FIR registered on 17th September 2023 at Police Station Hodal, Palwal District, Haryana. The petitioner Nabab @ Nababdeen was arrested along with two others while allegedly transporting 106.9 kg of ganja. The petitioner was incarcerated for more than one year and six months by the time the bail petition was decided. The State opposed the bail application, arguing that the quantity recovered being commercial would attract the embargo of Section 37, NDPS Act. The State asserted that there was “every apprehension that if any, bail is granted to petitioner, he may abscond from the trial and flee from justice.”

The petitioner, on the other hand, highlighted his continuous pre-trial detention exceeding 18 months, absence of criminal antecedents, and requested bail while expressing readiness to comply with stringent conditions.

Justice Anoop Chitkara observed that although the allegations related to possession of commercial quantity, the duration of pre-trial custody coupled with the petitioner being a first-time offender tilted the balance towards granting conditional liberty. The Court remarked, “Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the prima facie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage.”

The Court further stressed that constitutional courts are duty-bound to prevent injustice caused by indefinite detention before trial, especially where the accused has no criminal antecedents. The Court relied upon several authoritative precedents of the Hon’ble Supreme Court, including Dheeraj Kumar Shukla vs. State of U.P., Shince Babu vs. State of Kerala, Sohrab Khan vs. State of M.P., and Md. Tajiur Rahaman vs. State of West Bengal, all of which uniformly relaxed the rigors of Section 37 NDPS Act where prolonged incarceration was unjustified.

Justice Chitkara echoed the principle laid down in Tajmul Sk v. State of West Bengal, that “Right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarceration for more than one and a half years, the trial is yet to start.”

Referring to the petitioner's continued detention exceeding eighteen months, the Court remarked, “Pre-trial 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.” The Court unequivocally held that continued detention would amount to a constitutional violation, and liberty must prevail unless exceptional circumstances warrant otherwise.

The Court underlined the role of constitutional courts in preventing over-incarceration by quoting the Supreme Court in 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.”

Justice Chitkara held that the trial was not showing signs of early conclusion, making indefinite incarceration disproportionate. The Court said, “It seems that the investigation is complete and the conclusion of trial will take some reasonable time,” adding that the continued custody of the petitioner would serve no useful purpose and would amount to unjustified deprivation of liberty.

The Court also addressed the apprehension regarding misuse of bail by stating, “While furnishing a personal bond, the petitioner shall mention the AADHAR number, Passport number, Mobile number, and E-mail id, if available,” and imposed restrictions on possession of firearms during the pendency of the case. However, it cautioned that “if the petitioner indulges in any non-bailable offense, the State shall file an application for cancellation of this bail.”

In granting bail, the Court concluded, “Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail.”

By this decision, the Punjab and Haryana High Court reaffirmed that the right to personal liberty, even in NDPS cases, cannot be rendered illusory by mere mechanical invocation of Section 37 where pre-trial incarceration itself amounts to a punishment.

Date of Decision: 27th March 2025