Section 37 NDPS Cannot Override Article 21 Forever – Pre-Trial Custody Cannot Be Endless: Punjab & Haryana High Court Grants Bail in 90kg Poppy Husk Case

“Conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act” – In a ruling that forcefully reiterates the constitutional primacy of personal liberty, the Punjab and Haryana High Court granted regular bail to a man accused in a narcotics case involving the seizure of 90 kilograms of poppy husk, while observing that “prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution.”

In the case titled Paramjeet Singh @ Paramjit Singh v. State of Punjab, Justice Anoop Chitkara held that despite the application of the stringent Section 37 of the NDPS Act, which normally bars bail in commercial quantity cases, bail must be granted when the accused has undergone significant pre-trial custody and the trial shows no signs of near completion.

The petitioner was arrested in connection with FIR No. 206 dated 04.10.2023, registered at Police Station Sidhwa Bet, Ludhiana District, under Sections 15 and 25 of the NDPS Act, with Section 29 added later. Based on secret information, the police allegedly seized 90 kilograms of poppy husk from a vehicle driven by a co-accused, with the petitioner accompanying him.

Challenging his continued incarceration, the petitioner asserted that he had no criminal antecedents, and had already spent 1 year, 5 months, and 24 days in custody, while trial proceedings had made no substantial headway. His counsel submitted, “Petitioner shall not indulge himself in offences involving commercial quantity or Sections 19, 24, 27-A of the NDPS Act,” and further consented that if he violated this undertaking, “the State may file for cancellation of bail.”

The Court considered whether statutory restrictions under Section 37 of the NDPS Act could indefinitely defeat a citizen’s right to personal liberty under Article 21 of the Constitution, particularly when no criminal antecedents exist and the trial is indefinitely delayed.

Justice Anoop Chitkara held: “The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution… Conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”
 

Citing a long line of precedents from the Hon’ble Supreme Court, including Chitta Biswas v. State of West Bengal, Najrul Islam v. State of West Bengal, Rajib Dey v. State of West Bengal, and several others, the Court emphasized that prolonged pre-trial detention—even in commercial quantity NDPS cases—has increasingly been held unjustifiable by the apex court.

The Court observed: “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.”
 

Justice Chitkara noted that the bail order was being granted not as an acquittal or exoneration, but purely based on constitutional protection under Article 21. In doing so, the Court imposed several structured conditions, including surrender of firearms and regular appearance before the trial court, but cautioned: “Bail conditions must not only have a nexus to the purpose they seek to serve but must also be proportional… The courts must balance the liberty of the accused with the necessity of a fair trial.”

The Court further stated: “Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.”
The Court made it clear that: “This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State shall file an application for cancellation of this bail before the Trial Court.”

This judgment is yet another powerful affirmation of the principle that statutory rigors must yield when fundamental rights are at stake, especially in the context of inordinately delayed trials and non-convicted undertrials. Justice Anoop Chitkara’s decision firmly reiterates that the criminal justice system cannot afford to operate in a way that presumes guilt through indefinite pre-trial incarceration.
“Without commenting on the merits of the case… the petitioner makes a case for bail,” the Court concluded, adding that the order would be effective from the moment it is uploaded on the court’s website.

Date of Decision: 21 April 2025