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by sayum
26 August 2026 10:38 AM
“Mere Delay In Trial Cannot Undo The Twin Conditions Of Section 37 NDPS Act” – High Court of Jammu & Kashmir and Ladakh at Jammu, in a significant ruling under the Narcotic Drugs and Psychotropic Substances Act, 1985, dismissed a bail application moved under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by Ashraf Mohd., who had remained in custody for over three and a half years. Despite invoking the fundamental right to a speedy trial under Article 21 of the Constitution, the Court held that prolonged incarceration alone cannot bypass the statutory bar under Section 37 of the NDPS Act, particularly in cases involving commercial quantities of narcotics.
Justice M.A. Chowdhary, delivering the verdict, ruled that the twin conditions under Section 37 – that the accused is not guilty and not likely to commit any offence while on bail – must be strictly satisfied, and in the absence of cogent material to that effect, bail cannot be granted merely on the ground of delay in trial or long custody.
Large-Scale Recovery and Alleged Criminal Conspiracy
The bail plea arose in connection with FIR No. 10/2022, registered at Police Station Katra, under Sections 8, 20, 21, 22, 25, and 27-A of the NDPS Act, relating to the seizure of commercial quantities of heroin and charas from a vehicle intercepted near Katra.
The police recovered:
Heroin in three packets (950g, 840g, 900g) hidden in the vehicle’s rear bumper.
Charas (850g and 900g) from a bag carried by co-passenger Amjad Khan.
The vehicle was driven by the applicant, Ashraf Mohd., and the investigation revealed a nexus between him and another accused Bashir Ahmed, described as the kingpin. As per prosecution, Ashraf acted as a courier in the illicit drug network, with bank statements indicating Rs. 5.77 lakhs transferred to his account by Bashir. Call detail records (CDRs) and multiple cash transactions allegedly corroborated the criminal conspiracy under Section 29 NDPS Act.
Prolonged Incarceration and Article 21: Arguments of the Defence
The defence, led by Mr. Mehtab Gulzar and Mr. Akeel Wani, argued that:
The applicant had been in custody for more than three and a half years.
No contraband was recovered directly from him.
There was no eyewitness or incriminating testimony linking him to the drugs.
The trial had not concluded, and no prosecution witness had testified against the applicant so far.
Relying on the Supreme Court’s decisions in Union of India v. K.A. Najeeb, Rabi Prakash v. State of Odisha, and Dheeraj Kumar Shukla v. State of U.P., the counsel contended that constitutional courts can grant bail in NDPS cases when the trial is inordinately delayed, causing a “wholesale breach” of the right to liberty.
They further pointed out that co-accused Bashir Ahmed, the alleged financer and mastermind, had been granted bail by the trial court, and thus the rejection of Ashraf's bail on similar facts was discriminatory and inconsistent.
“Delay Alone Cannot Justify Bail Without Meeting Section 37 Threshold”
Justice Chowdhary acknowledged the significance of Article 21 but maintained that special statutes like the NDPS Act demand stricter standards for granting bail when commercial quantity is involved.
“The alleged recovery of psychotropic substance falls within the commercial quantity, thus, rigors/embargo of Section 37 of NDPS Act, comes into play,” the Court observed, adding that “unless the Court records satisfaction on the twin requirements... it is not legally permissible to grant bail.”
Citing the latest precedent in Union of India v. Vigin K. Varghese, 2025 SCC OnLine SC 2440, the Court emphasized that even where incarceration is prolonged, a finding of “reasonable grounds to believe the accused is not guilty” cannot be casual, and must rest on a careful appraisal of the prosecution material.
The Supreme Court had clarified in Vigin K. Varghese: “A conclusion of this nature, if returned without addressing the prosecution’s assertions... risks trenching upon appreciation of evidence which would be in the domain of trial court at first instance.”
The Court, therefore, held that the material on record — including financial transactions, communications with co-accused, and past involvement in NDPS offences — prima facie establish the applicant’s complicity.
Co-Accused Being Granted Bail Not a Ground for Parity
While the defence urged parity with co-accused Bashir Ahmed, who had been granted bail, the Court refused to be persuaded. It reiterated that parity in bail cannot be claimed when the accused fails to satisfy the statutory conditions applicable to their own role, particularly when the evidence against them is distinct.
Bail Rejected Due To Commercial Quantity, Prima Facie Involvement, and Statutory Bar
Summing up, the Court ruled: “There is no material placed on record so as to satisfy this Court with regard to meet the second condition that the petitioner has not committed the offence. The evidence brought on record by the Investigating Agency is sufficient to state that the petitioner was prima facie involved in the commission of the offences...”
The bail plea, along with all connected applications, was therefore dismissed.
Strong Judicial Reaffirmation That Article 21 Must Be Balanced With Legislative Policy In Drug Offences
This ruling reinforces a growing judicial trend post-Vigin K. Varghese that, while constitutional courts may intervene in extreme cases, NDPS Act bail provisions continue to pose a high threshold, particularly where commercial quantities are involved. The judgment affirms that prolonged incarceration, while a serious concern, cannot dilute legislative intent, unless accompanied by clear lack of evidence or abuse of process.
Date of Decision: 10 December 2025
