Prolonged Incarceration Militates Against Article 21, Constitutional Principles Must Override Section 37 NDPS Rigors: Punjab & Haryana High Court

"Prolonged incarceration militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the constitutional principles must override the statutory embargo contained under Section 37 of the NDPS Act." Punjab and Haryana High Court, in a significant ruling, held that the fundamental right to life and liberty under Article 21 of the Constitution of India must take precedence over the stringent bail conditions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act in cases of inordinate trial delay.

A bench of Justice Manisha Batra observed that an accused cannot be kept in custody for an indefinite period, as "the danger of unjustified imprisonment is that inmates are more likely to be hardened rather than reformed."

The petitioner, Avtar Singh, was apprehended by the Special Task Force (STF) on April 22, 2024, following a secret tip-off. Upon a personal search, the police allegedly recovered 540 grams of heroin from him, while 480 grams were recovered from his co-accused. Consequently, an FIR was registered under Sections 21 and 29 of the NDPS Act, and the petitioner remained in custody for over two years while awaiting the conclusion of the trial.

The primary question before the court was whether the petitioner was entitled to regular bail on the grounds of prolonged incarceration despite the recovery of a commercial quantity of contraband. The court also considered whether a second bail petition was maintainable in the absence of a significant change in circumstances other than the passage of time in custody.

Maintainability Of Successive Bail Petitions

The court first addressed the State's objection regarding the maintainability of the petition, noting it was a successive application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Justice Batra clarified that an accused retains the right to move successive bail applications, and it is the court's duty to determine if fresh grounds exist.

"Every day spent by an accused in custody provides a new cause of action for filing a bail application under certain circumstances."

The bench emphasized that the denial of bail is intrinsically linked to the prosecution’s obligation to ensure a speedy trial. The court noted that if the prosecution fails to press for an early completion of the trial, the court must intervene to protect the liberty of the individual.

Constitutional Principles Overriding Section 37 NDPS Act

Regarding the statutory bar under Section 37 of the NDPS Act, which restricts bail for commercial quantities, the court held that such provisions are not absolute when faced with a violation of Article 21. The bench relied on the Supreme Court's decision in Mohd. Muslim @ Hussain v. State (NCT of Delhi) to highlight that jails are overcrowded and the conditions are often appalling.

"Grant of bail on account of undue delay in trial cannot be said to be fettered under Section 37 of the NDPS Act."

The court further cited the apex court's ruling in Rabi Prakash v. State of Odisha, observing that constitutional principles must override statutory embargoes when incarceration becomes punitive rather than preventive. It noted that the rigors of Section 37 are subject to the condition that the trial proceeds expeditiously.

Inordinate Delay In Prosecution Evidence

The court expressed concern over the slow progress of the trial, noting that the petitioner had been in custody since April 2024. Despite the passage of over two years, the court observed that not a single witness out of the 17 cited by the prosecution had been examined.

"The trial is not likely to be concluded in near future as only none out of 17 prosecution witnesses have been examined so far."

Justice Batra pointed out that continued detention would serve no fruitful purpose, especially since the investigation was complete and the challan had been filed. The court also took note of the fact that the co-accused had already been granted the benefit of bail, and there was no evidence to suggest that the petitioner would abscond if released.

Applying The Principle Of Proportionality

The High Court referred to recent Supreme Court precedents, including Santosh Pawar Vs. State of Chhattisgarh, where bail was granted after 19 months of incarceration for commercial quantities. The bench noted that in the present case, the petitioner's incarceration had exceeded 24 months, making it a fit case for the exercise of discretionary power.

"The petitioner has suffered prolonged incarceration for a period of 02 years and 07 days."

The court concluded that the mandate of Section 436A of the CrPC (now corresponding to BNSS provisions) regarding the maximum period for which an undertrial prisoner can be detained is applicable even to offences under the NDPS Act, ensuring that the trial does not become the punishment itself.

The court allowed the petition and ordered the release of Avtar Singh on regular bail, holding that the slow pace of the trial and the length of his incarceration outweighed the statutory restrictions of the NDPS Act. The bench clarified that these observations are limited to the bail proceedings and shall not influence the final merits of the trial.

Date of Decision: 04 May 2026