Prolonged Incarceration Must Be Considered Dehors Bar of Section 37 NDPS Act – Punjab and Haryana High Court

In a landmark judgment today, the Punjab and Haryana High Court underscored the significance of personal liberty and the consideration of prolonged incarceration in bail applications under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). Hon'ble Mr. Justice Pankaj Jain, while delivering the verdict in the case of Shivam Kumar versus the State of Punjab, emphasized that "the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution."

The court granted regular bail to the petitioner, Shivam Kumar, in case FIR No. 325, registered under Section 22(c) of the NDPS Act, who had been in custody for nearly three years. In a detailed judgment, Justice Jain noted the need to consider the prolonged duration of incarceration as a significant factor, irrespective of the statutory bar under Section 37 of the NDPS Act.

Advocates Mr. Tanvir Joshi, representing the petitioner, and Mr. Jashandeep Singh, AAG, Punjab, presented their arguments, with the court ultimately siding with the petitioner's plea for bail.

The decision aligns with several precedents set by the Supreme Court of India, which were duly referenced in the judgment. Notably, cases like Rabi Prakash Vs. The State of Odisha, Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, and others were cited, all highlighting the judiciary's stance on personal liberty and the impact of extended periods of imprisonment on the accused.

This judgment is seen as a significant move towards upholding the rights of undertrials, particularly in cases governed by stringent laws like the NDPS Act. The court's observation about the "conditional liberty" overriding statutory embargoes underlines the judiciary's growing concern over undertrials facing prolonged incarceration without trial.

Legal experts view this judgment as a reaffirmation of the constitutional right to life and personal liberty, especially in the context of bail under the NDPS Act. The court's decision sets a precedent for future cases, ensuring that the duration of custody remains a pivotal factor in the judicial process.

Date of Decision: 15 November 2023

Shivam Kumar VS State of Punjab