ANIL PRADHAN vs THE STATE OF WEST BENGAL
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT JALPAIGURI
CRIMINAL MISCELLANEOUS JURISDICTION
(APPELLATE SIDE)
CRM (NDPS) 388 of 2026
Manoyara Beowa @ Manwara Bewa
v.
The State of West Bengal
With
C.R.M. (NDPS) 337 of 2026
Labkush Kaul @ Kanl
v.
The State of West Bengal
With
C.R.M. (NDPS) 336 of 2026
Anil Pradhan
v.
The State of West Bengal
With
CRM (NDPS) 390 of 2026
Sri Bishnu Roy
v.
The State of West Bengal
Before: The Hon’ble Justice Arijit Banerjee
For the petitioner
in CRM (NDPS) 388 of 2026
: Mr. Sourav Ganguly, Adv.
Ms. Rishita Chakraborty, Adv.
Mr. Gopal Roy, Adv.
2
: Mr. Jagriti Mishra, Ld.AAAG.,
For the State
in CRM (NDPS) 388 of 2026
and C.R.M. (NDPS) 336 of
2026
Mr. Avrajyoti Das, Ld.APP.
Mr. Atul Dong, Adv.
Mrs. Panchali Deb Sikder (Nag), Adv.
: Mr. Rounak Ghosh, Adv.
For the petitioner
in C.R.M. (NDPS) 337 of
2026 and C.R.M. (NDPS) 336
of 2026
For the State
in C.R.M. (NDPS) 337 of
2026
:
Mr. Avrojyoti Das, Ld. APP.,
Mr. Gobinda Ghosh, Adv.
Ms. Baishali Chakrabarty, Adv.
For the petitioner
in CRM (NDPS) 390 of 2026
: Mr. Kalipada Das, Adv.,
Ms. S. Roy Dakua, Adv.
: Mr. Avrajyoti Das, Ld.APP.,
For the State
in CRM (NDPS) 390 of 2026
Mr. Gobinda Ghosh, Adv.
Ms. Baishali Chakraborty, Adv.
For Judgment : 03.09.2026
Arijit Banerjee, J. :-
1. These four applications for bail have been taken up together for
consideration and disposal since they involve common questions of fact and
law.
2. The essential fact in each of the applications is that commercial
quantity of narcotics drugs/psychotropic substance was seized from them.
They seek bail notwithstanding the restrictions in Section 37 of the NDPS
Act, on the ground that they have been in custody for a long time and there
3
has been no progress in the trial. They say that Article 21 of the
Constitution of India guarantees to every citizen the fundamental right of
speedy trial. If there is inordinate delay in the process of trial, not
attributable to the under-trial, and in the meantime if the under-trial has
suffered prolonged incarceration, he should be enlarged on bail on the touch
stone of Article 21 of the Constitution. In such a case the restrictions in
Section 37 will be overridden by the constitutional guarantee in Article 21 of
the Constitution of India.
3. Be it noted that no argument was advanced on the merits of the case
in aid of the prayer for bail.
4. In CRM (NDPS) No. 388 of 2026, the applicant is in custody for more
than one year four months. In CRM (NDPS) 390 of 2026, the applicant is in
custody for about one year eleven months. In CRM (NDPS) 336 of 2026, the
applicant is in custody for about one year nine months. In CRM (NDPS) 337
of 2026, the applicant is in custody for about two years one month.
5. Learned Advocates for the petitioners relied on various orders of the
Hon’ble Supreme Court in support of the submission that a citizen’s
fundamental right to speedy disposal of a criminal case instituted against
him overrides restrictions on grant of bail as in Section 37 of the NDPS Act,
Section 43D-(5) Unlawful Activities (Prevention) Act, 1967 and the like.
Learned Advocates relied on an order dated May 15, 2026, passed by the
Hon’ble Supreme Court in the case of Ram Ashray @ Ramsare Rajbhar v.
The State of Chhattisgarh [SLP (CRL.) No. 7206/2026] . In that case the
Hon’ble Supreme Court granted bail to the accused person noticing that he
4
had been in custody for about one year six months and that he had no
criminal antecedents.
6. Learned Counsel then relied on an order of a Division Bench of this
Court in Anjali Mondal v. The State of West Bengal [CRM (NDPS) No.
1606 of 2024] . In that case the accused person had been in custody for
more than one year three months. Witness action had not begun. There
were 16 chargesheet named witnesses. The Court observed that there was
no chance of an early conclusion of the trial and granted bail on the
touchstone of Article 21 of the Constitution of India.
7. Reliance was also placed on an order of the Hon’ble Supreme Court in
the case of Nitish Adhikary alias Bapan v. State of West Bengal,
reported at 2022 SCC OnLine SC 2068 . The Hon’ble Supreme Court
noted that the applicant had undergone detention for one year seven
months. The trial was at a preliminary stage as only one witness had been
examined. The petitioner did not have criminal antecedents. On those
considerations, the Hon’ble Supreme Court granted bail.
8. In Naeem Ahmed alias Naim Ahmad v. Govt. of NCT of Delhi,
reported at 2024 SCC OnLine SC 220 , the applicant had been in custody
for more than one year eleven months. Although investigation was complete,
charge was yet to be framed. Primarily noticing the period of custody
undergone by the applicant, the Supreme Court granted bail to him.
9. Learned Counsel then referred to the decision of the Hon’ble Supreme
Court in Mohd. Muslim alias Hussain v. State (NCT of Delhi), reported
at (2023) 18 SCC 166 . This was also a case under the NDPS Act and
involved the question as to whether or not bail should be granted to the
5
accused person. Reliance was placed on paragraphs 19 to 25 of the reported
judgment which read as follows:-
“19. The conditions which courts have to be cognizant of are that
there are reasonable grounds for believing that the accused is “ not
guilty of such offence ” and that he is not likely to commit any
offence while on bail. What is meant by “not guilty” when all the
evidence is not before the court? It can only be a prima facie
determination. That places the court's discretion within a very
narrow margin. Given the mandate of the general law on bails
(Sections 436, 437 and 439 CrPC) which classify offences based on
their gravity, and instruct that certain serious crimes have to be
dealt with differently while considering bail applications, the
additional condition that the court should be satisfied that the
accused (who is in law presumed to be innocent) is not guilty, has
to be interpreted reasonably . Further the classification of offences
under the Special Acts (the NDPS Act, etc.), which apply over and
above the ordinary bail conditions required to be assessed by
courts, require that the court records its satisfaction that the
accused might not be guilty of the offence and that upon release,
they are not likely to commit any offence. These two conditions
have the effect of overshadowing other conditions.
20. In cases where bail is sought, the court assesses the material
on record such as the nature of the offence, likelihood of the
accused cooperating with the investigation, not fleeing from
6
justice: even in serious offences like murder, kidnapping, rape, etc.
On the other hand, the court in these cases under such Special
Acts, has to address itself principally on two facts: likely guilt of
the accused and the likelihood of them not committing any offence
upon release. This Court has generally upheld such conditions on
the ground that liberty of such citizens has to—in cases when
accused of offences enacted under special laws—be balanced
against the public interest.
21. A plain and literal interpretation of the conditions under
Section 37 (i.e. that court should be satisfied that the accused is
not guilty and would not commit any offence) would effectively
exclude grant of bail altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the only
manner in which such special conditions as enacted under Section
37 can be considered within constitutional parameters is where
the court is reasonably satisfied on a prima facie look at the
material on record (whenever the bail application is made) that the
accused is not guilty. Any other interpretation would result in
complete denial of the bail to a person accused of offences such as
those enacted under Section 37 of the NDPS Act.
22. The standard to be considered therefore, is one, where the
court would look at the material in a broad manner, and
reasonably see whether the accused's guilt may be proved. The
judgments of this Court have, therefore, emphasised that the
7
satisfaction which courts are expected to record i.e. that the
accused may not be guilty, is only prima facie, based on
a reasonable reading , which does not call for meticulous
examination of the materials collected during investigation (as held
in Union of India v. Rattan Mallik (2009) 2 SCC 624: (2009) 1 SCC
(Cri) 831]). Grant of bail on ground of undue delay in trial, cannot
be said to be fettered by Section 37 of the Act, given the imperative
of Section 436-A which is applicable to offences under the NDPS
Act too (ref. Satender Kumar Antil (2022) 10 SCC 51: (2023) 1 SCC
(Cri) 1]). Having regard to these factors the Court is of the opinion
that in the facts of this case, the appellant deserves to be enlarged
on bail.
23. Before parting, it would be important to reflect that laws which
impose stringent conditions for grant of bail, may be necessary in
public interest; yet, if trials are not concluded in time, the injustice
wrecked on the individual is immeasurable. Jails are overcrowded
and their living conditions, more often than not, appalling.
According to the Union Home Ministry's response to Parliament, the
National Crime Records Bureau had recorded that as on 31-12-
2021, over 5,54,034 prisoners were lodged in jails against total
capacity of 4,25,069 prisoners in the country [National Crime
Records Bureau, Prison Statistics in India
<https://ncrb.gov.in/sites/default/files/PSI-
8
2021/Executive_ncrb_Summary-2021.pdf>.]. Of these 1,22,852
were convicts; the rest 4,27,165 were undertrials.
24. The danger of unjust imprisonment, is that inmates are at risk
of “prisonisation” a term described by the Kerala High Court in A
Convict Prisoner v. State [ A Convict Prisoner v. State , 1993 SCC
OnLine Ker 127 : 1993 Cri LJ 3242] as “ a radical transformation ”
whereby the prisoner : (SCC OnLine Ker para 13)
“ 13 . … loses his identity. He is known by a number. He loses
personal possessions. He has no personal relationships.
Psychological problems result from loss of freedom, status,
possessions, dignity and autonomy of personal life. The inmate
culture of prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-perception
changes.”
25. There is a further danger of the prisoner turning to crime, “ as
crime not only turns admirable, but the more professional the crime,
more honour is paid to the criminal ” [Working Papers - Group on
Prisons & Borstals - 1966 U.K.] (also see Donald Clemmer's “
The
Prison Community ” published in 1940) [Donald Clemmer, The Prison
Community (1968) Holt, Rinehart & Winston, which is referred to in
Tomasz Sobecki, “Donald Clemmer's Concept of Prisonisation”,
available
at:https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobecki_sk
lad.pdf(accessed on 23-3-2023).]). Incarceration has further
9
deleterious effects—where the accused belongs to the weakest
economic strata: immediate loss of livelihood, and in several cases,
scattering of families as well as loss of family bonds and alienation
from society. The courts therefore, have to be sensitive to these
aspects (because in the event of an acquittal, the loss to the accused
is irreparable), and ensure that trials—especially in cases, where
special laws enact stringent provisions, are taken up and concluded
speedily. ”
10. Learned Counsel then referred to the decision of the Hon’ble Supreme
Court in Union of India v. K. A. Najeeb, reported at (2021) 3 SCC 713 . In
support of his submission that restrictions on grant of bail in special
statutes like the NDPS Act, 1985 or the Unlawful Activities (Prevention) Act,
1967, do not affect the power of a constitutional court to grant bail on the
touchstone of Article 21 of the Constitution of India. In particular, reference
was made to paragraphs 10, 11, 12, 15 and 17 of the reported judgment,
which read as follows:-
“10. It is a fact that the High Court in the instant case has not
determined the likelihood of the respondent being guilty or not, or
whether rigours of Section 43-D (5) of the UAPA are alien to him.
The High Court instead appears to have exercised its power to
grant bail owing to the long period of incarceration and the
unlikelihood of the trial being completed anytime in the near
future. The reasons assigned by the High Court are apparently
traceable back to Article 21 of our Constitution, of course without
10
addressing the statutory embargo created by Section 43-D (5) of
the UAPA.
11. The High Court's view draws support from a batch of decisions
of this Court, including in Shaheen Welfare Assn. [(1996) 2 SCC
616:1996 SCC (Cri) 366], laying down that gross delay in disposal
of such cases would justify the invocation of Article 21 of the
Constitution and consequential necessity to release the undertrial
on bail. It would be useful to quote the following observations from
the cited case: (SCC p. 622, para 10)
“ 10 . Bearing in mind the nature of the crime and the need to
protect the society and the nation, TADA has prescribed in
Section 20(8) stringent provisions for granting bail. Such
stringent provisions can be justified looking to the nature of the
crime, as was held in Kartar Singh case [(1994) 3 SCC 569 :
1994 SCC (Cri) 899], on the presumption that the trial of the
accused will take place without undue delay. No one can
justify gross delay in disposal of cases when undertrials
perforce remain in jail, giving rise to possible situations that
.”
may justify invocation of Article 21
(emphasis supplied)
12. Even in the case of special legislations like the Terrorist and
Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs
and Psychotropic Substances Act, 1985 (“the NDPS Act”) which too
11
have somewhat rigorous conditions for grant of bail, this Court
in Paramjit Singh v. State (NCT of Delhi) [(1999) 9 SCC 252 : 1999
SCC (Cri) 1156], Babba v. State of Maharashtra [(2005) 11 SCC
569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of
Gujarat [(2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the
accused on bail when they had been in jail for an extended period
of time with little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such special
enactments, has thus been primarily justified on the touchstone of
speedy trials to ensure the protection of innocent civilians.
15. This Court has clarified in numerous judgments that the
liberty guaranteed by Part III of the Constitution would cover
within its protective ambit not only due procedure and fairness but
also access to justice and a speedy trial. In Supreme Court Legal
Aid Committee (Representing Undertrial Prisoners) v. Union of
India [(1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39], it was held
that undertrials cannot indefinitely be detained pending trial.
Ideally, no person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter. However,
owing to the practicalities of real life where to secure an effective
trial and to ameliorate the risk to society in case a potential
criminal is left at large pending trial, the courts are tasked with
deciding whether an individual ought to be released pending trial
or not. Once it is obvious that a timely trial would not be possible
12
and the accused has suffered incarceration for a significant period
of time, the courts would ordinarily be obligated to enlarge them
on bail.
17. It is thus clear to us that the presence of statutory restrictions
like Section 43-D (5) of the UAPA per se does not oust the ability of
the constitutional courts to grant bail on grounds of violation of
Part III of the Constitution. Indeed, both the restrictions under a
statute as well as the powers exercisable under constitutional
jurisdiction can be well harmonised. Whereas at commencement of
proceedings, the courts are expected to appreciate the legislative
policy against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being completed
within a reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43-D (5) of the UAPA being
used as the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial. ”
11. Learned Counsel for the applicants finally referred to the recent
decision of the Hon’ble Supreme Court in Syed Iftikhar Andrabi v.
National Investigation Agency, Jammu, reported at 2026 SCC OnLine
SC 881 . Reference was made to paragraphs 3, 23.3-23.5 of the reported
judgment which read as follows:-
13
“ 3. The above question arises in the context of the challenge by the
appellant to the judgment and order dated 19.08.2025 passed by
the High Court of Jammu & Kashmir and Ladakh at Jammu
(briefly ‘the High Court’ hereinafter) in Criminal Appeal (D.) No.
20/2024 ( Syed Iftikhar Andrabi v. National Investigation Agency,
Jammu ).
23.3. As regards the decision of this Court in Zahoor Ahmad Shah
Watali , the Bench analysed the decision in K.A. Najeeb where the
three-Judge Bench had critically examined the decision in Zahoor
Ahmad Shah Watali. While agreeing with the reasoning given
in K.A. Najeeb qua the decision in Zahoor Ahmad Shah Watali , the
Bench observed that Zahoor Ahmad Shah Watali has to be read
and understood in the context in which it was rendered and not as
a precedent to deny bail to an accused undertrial suffering long
incarceration with no end in sight of the criminal trial. Relevant
portion of the judgment in Shaikh Javed Iqbal reads as under:
33. We are in respectful agreement with the reasoning given
in K.A. Najeeb regarding the decision in Zahoor Ahmad Shah
Watali . This decision i.e. Zahoor Ahmad Shah Watali has to be
read and understood in the context in which it was rendered
and not as a precedent to deny bail to an accused-undertrial
suffering long incarceration with no end in sight of the
criminal trial.
14
23.4. As to the restrictions imposed on granting bail to an accused
under the stringent provisions of the UAP Act, this Court declared
that such statutory restrictions would not come in the way of a
constitutional court from granting bail to an accused if it finds
that the right of the accused under Article 21 of the Constitution of
India has been infringed. The Bench reiterated that the decision
in K.A. Najeeb was rendered by a three-Judge Bench and,
therefore, would be binding on a Bench of two Judges. It has been
held as under:
“42. This Court has, time and again, emphasised that right to
life and personal liberty enshrined under Article 21 of
the Constitution of India is overarching and sacrosanct. A
constitutional court cannot be restrained from granting bail to
an accused on account of restrictive statutory provisions in a
penal statute if it finds that the right of the accused-
undertrial under Article 21 of the Constitution of India has
been infringed. In that event, such statutory restrictions
would not come in the way. Even in the case of interpretation
of a penal statute, howsoever stringent it may be, a
constitutional court has to lean in favour of constitutionalism
and the rule of law of which liberty is an intrinsic part. In the
given facts of a particular case, a constitutional court may
decline to grant bail. But it would be very wrong to say that
under a particular statute, bail cannot be granted. It would
15
run counter to the very grain of our constitutional
jurisprudence. In any view of the matter, K.A. Najeeb being
rendered by a three-Judge Bench is binding on a Bench of
two Judges like us.”
23.5. In the facts and circumstances of the case, this Court held
that continued incarceration of the appellant would not be justified
and therefore granted bail to the appellant. ”
12. Learned State Counsel submitted that in NDPS cases, jail is the rule
and bail is the exception. When commercial quantity of narcotic drug or
psychotropic substance is involved, the Court will not grant bail unless the
twin conditions in Section 37 of the NDPS Act are satisfied, i.e., the Court is
satisfied that there are reasonable grounds for believing that the accused is
not guilty of the offence and that he is not likely not commit any offence
while on bail. In this connection learned Counsel relied on the decision of
the Hon’ble Supreme Court in Narcotics Control Bureau v. Kashif
reported at (2024) 11 SCC 372 . In particular reliance was placed on
paragraphs 9 to 14 of the judgement which read as follows: -
“ Compliance with the mandate under Section 37
9. There has been consistent and persistent view of this Court that
in the NDPS cases, where the offence is punishable with minimum
sentence of ten years, the accused shall generally be not released
on bail. Negation of bail is the rule and its grant is an exception .
While considering the application for bail, the court has to bear in
mind the provisions of Section 37 of the NDPS Act, which are
16
mandatory in nature. The recording of finding as mandated in
Section 37 is a sine qua non for granting bail to the accused
involved in the offences under the said Act.
10. Apart from granting the opportunity of hearing to the Public
Prosecutor, the other two conditions i.e. ( i ) the satisfaction of the
court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence, and that ( ii ) he is not
likely to commit any offence while on bail, are the cumulative and
not alternative conditions.
11. In State of M.P. v. Kajad [(2001) 7 SCC 673 : 2001 SCC (Cri)
1520] , this Court while considering the scope of Section 37 in the
light of the scheme of the Act, had observed that: (SCC pp. 675-76,
para 5)
“ 5 . … A perusal of Section 37 of the Act leaves no doubt in the
mind of the court that a person accused of an offence,
punishable for a term of imprisonment of five years or
more, shall generally be not released on bail. Negation of bail
is the rule and its grant an exception under sub-clause (ii) of
clause (b) of Section 37(1) . For granting the bail the court
must, on the basis of the record produced before it, be
satisfied that there are reasonable grounds for believing that
the accused is not guilty of the offences with which he is
charged and further that he is not likely to commit any
offence while on bail. It has further to be noticed that the
conditions for granting the bail, specified in clause ( b ) of sub-
17
section (1) of Section 37 are in addition to the limitations
provided under the Code of Criminal Procedure or any other
law for the time being in force regulating the grant of bail.
Liberal approach in the matter of bail under the Act is
uncalled for.”
(emphasis supplied)
12. Similarly, recently a three-Judge Bench in Narcotics
Control Bureau v. Mohit Aggarwal [ Narcotics Control
Bureau v. Mohit Aggarwal , (2022) 18 SCC 374], considering
the earlier judgments on the parameters of bail available
under Section 37 of the said Act held that: (SCC p. 381,
para 19)
“ 19 . … The length of the period of his custody or the fact that
the charge-sheet has been filed and the trial has commenced
are by themselves not considerations that can be treated as
persuasive grounds for granting relief to the respondent
under Section 37 of the NDPS Act.”
13. So far as the facts of the present case are concerned, it
appears that a complaint case has been filed by the NCB against
the respondent and six others before the Special Court, for the
offences under Sections 8, 22( c ), 23( c ) and 29 of the NDPS Act. The
respondent-accused filed the bail application directly in the High
Court without first approaching the Special Court, and curiously
the High Court without considering as to whether the twin
conditions mentioned in clause ( b ) sub-section (1) of Section 37
18
were fulfilled or not, concluded without any material on record
that Section 37 was not attracted as there was non-compliance
with Section 52-A of the said Act within reasonable time.
14. The appellant NCB having opposed the bail application, it was
obligatory on the part of the High Court to record a satisfaction on
the cumulative conditions, namely, that there were reasonable
grounds for believing that the respondent-accused was not guilty
of the alleged offences and that he was not likely to commit any
offence while on bail, as contemplated in Section 37(1)( b ) of the
said Act. The non-recording of such satisfaction which is
mandatory in nature, has rendered the impugned order
[ Kashif v. Narcotics Control Bureau , 2023 SCC OnLine Del 2881] of
the High Court fallacious and untenable. ”
13. Learned State Counsel then referred to the decision of the Hon’ble
Supreme Court in the case of State of Punjab v. Sukhwinder Singh alias
Gora reported at 2026 SCC Online SC 671 . In particular, reliance was
placed on paragraphs 5, 9 and 10 of the judgement, which read as follows:
“5. By the impugned order, the High Court enlarged the
respondent on regular bail recording, in paragraph 8 thereof, that
the respondent had remained in custody for 2 years, 1 month and
2 days; that he was “not involved in any other case”; that charges
had been framed on 20.07.2024 but only 2 prosecution witnesses
out of 24 had been examined; that the trial was likely to take
considerable time; that further incarceration would be violative of
his right under Article 21 of the Constitution; and that, in the
19
words of the High Court, “the rigors of Section 37 of the NDPS
Act can be diluted bearing in mind the right to a speedy trial.”
9. It is well-settled that in matters involving recovery of
contraband in commercial quantity, the twin conditions under
Section 37(1)(b)(ii) of the NDPS Act are mandatory and entail no
relaxation merely on the ground that the accused has undergone
prolonged incarceration during the pendency of trial. The provision
casts upon the Court a duty to record, before enlarging an accused
on bail, its satisfaction on two cumulative conditions, first, that
there exist reasonable grounds for believing that the accused is not
guilty of the offence charged; and second, that he is not likely to
commit any offence while on bail. The recording of such
satisfaction is not a mere formality but a mandatory pre-condition,
the non-observance of which vitiates the grant of bail. This Court,
in Kashif (supra), has held in no uncertain terms that the
recording of satisfaction on the twin conditions under Section 37 is
mandatory and not merely directory, and that an order granting
bail without such recorded satisfaction stands vitiated and cannot
be sustained. The same view stands reiterated in Lalrintluanga
Sailo (supra).
10. The impugned order, on its own showing, does not record the
satisfaction mandated under Section 37(1)(b)(ii) of the NDPS Act.
Far from recording such satisfaction, the High Court has gone on
to observe that ‘the rigours of Section 37 of the NDPS Act can be
diluted bearing in mind the right to a speedy trial.’ Such an
20
approach is plainly contrary to the settled law laid down by this
Court and deserves to be set aside on this ground alone. The right
to speedy trial, rooted in Article 21 of the Constitution, is
undoubtedly a precious Constitutional right. That said, in matters
governed by a special enactment such as the NDPS Act,
particularly where the recovery is of commercial quantity, the said
right under Article 21 must be exercised within the framework of
Section 37 and cannot be pressed into service solely on the ground
of delay to override it. The constitutional right under Article 21 and
the special provision of law under Section 37, NDPS Act are to be
read harmoniously and not placed in opposition to each other. The
High Court, by failing to record its satisfaction on the twin
conditions under Section 37, has in this Court's view, committed
an error. ”
14. Learned State Advocate then referred to the Apex Court’s decision in
State of Punjab v. Balraj Singh alias Billa, reported at 2026 SCC
Online SC 1058 . Particular reference was made to paragraphs 14, 17 and
19 of the reported judgment which read as follows:
“14. As rightly submitted by the appellant State, this Court,
in Lalrintluanga Sailo (Supra) while setting aside the bail granted
by the High Court therein had held that consideration on the twin
conditions under Section 37 of the NDPS Act is essential by the
concerned Court. It was observed:
“5. There cannot be any doubt with respect to the position that
in cases involving commercial quantity of narcotic drugs or
21
psychotropic substances, while considering the application of
bail, the court is bound to ensure the satisfaction of conditions
under Section 37(1)( b )( ii ) of the NDPS Act. The said provision
reads thus:
“37. (1) (b)(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on bail.”
… … …
7. In the decision in Collector of Customs v. Ahmadalieva
Nodira [ Collector of Customs v. Ahmadalieva Nodira , (2004) 3
SCC 549 : 2004 SCC (Cri) 834], the three-Judge Bench of this
Court considered the provisions under Section 37(1)( b ) as also
Section 37(1)( b )( ii ) of the NDPS Act, with regard to the
expression “reasonable grounds” used therein. This Court
held that it means something more than the prima facie
grounds and that it contemplates substantial and probable
causes for believing that the accused is not guilty of the
alleged offence. Furthermore, it was held that the reasonable
belief contemplated in the provision would require existence
of such facts and circumstances as are sufficient in
themselves to justify satisfaction that the accused is not
guilty of the alleged offence.
… … …
22
10. Thus, the provisions under Section 37(1)( b )( ii ) of the NDPS
Act and the decisions referred supra revealing the consistent
view of this Court that while considering the application for
bail made by an accused involved in an offence under
the NDPS Act a liberal approach ignoring the mandate under
Section 37 of the NDPS Act is impermissible. Recording a
finding mandated under Section 37 of the NDPS Act, which is
sine qua non for granting bail to an accused under the NDPS
Act cannot be avoided while passing orders on such
applications.”
(Emphasis supplied)
17. Keeping in view the above expositions of law, we now proceed
to examine the impugned order. The abovementioned decisions of
this Court display the consistent view that when it comes to cases
involving commercial quantity of narcotics, the mandatory
requirements of Section 37 ought to be considered. It is not in
dispute that the case at hand, involves commercial quantity. In
such a scenario, consideration and reference to the twin
conditions enumerated under Section 37 of the NDPS Act was
mandatory. Upon a bare perusal of the impugned order, it is
evident that there has been no consideration at all by the High
Court on the twin conditions. In such a scenario, the impugned
order cannot be sustained in the eyes of law.
19. Moreover, the respondent has only undergone 1 year 7
months, and if found guilty a maximum sentence of twenty years
23
may be imposed upon him. Therefore, it cannot be said that he
has suffered incarceration for a long period, warranting
interference in view of Article 21 of the Constitution. ”
15. The salient principles of law that emerge from the aforesaid decisions,
read together harmoniously, are as follows: -
(i) In a case involving seizure of commercial quantity of narcotic
drug and/or psychotropic substance, bail is not be granted unless
the Court is satisfied that there are reasonable grounds to believe
that the accused has not committed the offence and that he is
unlikely to commit any offence while on bail. Such a finding must be
recorded in the order granting bail.
(ii) Article 21 of the Indian Constitution includes within its fold a
citizen’s right to speedy trial in a criminal case. However, to start
with, Article 21 of the Indian Constitution, insofar as the said right is
concerned, must operate within the framework of the NDPS Act.
Some delay in progress of the trial, is not ground enough to grant
bail to the accused ignoring the provisions of Section 37 of the NDPS
Act.
(iii) If the accused/under-trial is in custody for a ‘prolonged period’
and there is no possibility of an early conclusion of the trial, Article
21 of the Indian Constitution will operate with its full might and
override the restriction in Section 37 of the NDPS Act entitling the
Courts to enlarge the accused person on bail without recording its
satisfaction on the two aspects mentioned in Section 37 of the NDPS
Act.
24
(iv) The observation at paragraph 9 of the two-Judge Bench
judgment in Sukhwinder Singh’s case (Supra) that ‘in matters
involving recovery of contraband in commercial quantity, the twin
conditions under Section 37(1)(b)(ii) of the NDPS Act are mandatory
and entail no relaxation merely on the ground that the accused has
undergone prolonged incarceration during the pendency of trial.’,
seems to be contrary to the observation of the Supreme Court in the
three-Judge Bench decision in the case of K. A. Najeeb’s case
(Supra) to the effect that ‘whereas at commencement of proceedings,
the courts are expected to appreciate the legislative policy against
grant of bail but the rigors of such provisions will melt down where
there is no likelihood of trial being completed within a reasonable
time and the period of incarceration already undergone has exceeded
a substantial part of the prescribed sentence’. K.A. Najeeb’s case
also clarifies that the constitutional courts, in appropriate cases, has
the power to grant bail in NDPS cases involving commercial quantity
of contraband notwithstanding the restrictions in Section 37 of the
NDPS Act.
(v) What constitutes ‘prolonged incarceration’ justifying grant of
bail has not been expounded by the Hon’ble Supreme Court or any
relevant statute as is noted by the Hon’ble Supreme Court in its
decision in the case of Balraj Singh alias Billa, (Supra) . In that
context, paragraphs 21 and 22 of the judgement in that case is worth
noticing:-
25
“21. While judicial discretion is an important facet of justice
dispensation, this Court cannot overlook the fact that
similarly situated persons in custody may receive different
outcomes, dependent on the approach adopted by the
respective bench. At this stage, we deem it appropriate to
refer to a chart of decisions by coordinate benches of this
Court, including a chart submitted by Mr. Mr. Shadan
Farasat, learned senior counsel on this aspect:-
Case Name Period of
Incarceration
Outcome Bench Statute
involved
Harpreet Singh Talwar
@ Kabir Talwar v. State
of Gujarat [2025 INSC
662]
2 years 9
months
Bail not
granted
2JB NDPS &
UAPA
Union of India v. Vigin
K. Varghese [2025 SCC
OnLine SC 2440]
More than 3
years
Order granting
bail set aside
2JB NDPS
Union of India v. Namdeo
Ashruba Nakade [2025
SCC OnLine SC 3049]
More than 2
years
Order granting
bail set aside
2JB NDPS
Rabi Prakash v. State
of Odisha [2023 SCC
OnLine SC 1109]
3 years 6
months
Bail granted 2JB NDPS
Ankur Chaudhary v. State
of M.P. [2024 SCC OnLine
SC 2730]
More than 2
years
Bail granted 2JB NDPS
Narcotic Control Bur-
eau v. Lakhwinder
Singh [2025 SCC OnLine
SC 366]
4 years 6
months
Bail granted 2JB NDPS
Badsha Sk. v. State of
W.B. [2023 SCC
OnLine SC 1867]
2 years 4
months
Bail granted 2JB NDPS
22. However, we note that recently this Court in Tasleem
Ahmed v. State Govt. of NCT of Delhi [Crl. A. @ SLP (Crl.) No.
26
2867/2026] has referred the question concerning the
approach of constitutional Courts in bail matters under
special statutes, where “ Article 21, prolonged incarceration and
statutory restrictions intersect ”. In view of the said reference,
we do not wish to deliberate on this issue further, save and
except that in our view paramount consideration is nothing
but interest of justice for all. Should there be any conflict
between the sovereignty of country and personal liberty,
undoubtedly, the former shall prevail, particularly, when a
war is waged against the nation, be it in the form of supply of
drugs, which vitally affects the national economy and health
of the people.
(Emphasis
Supplied) ”
16. Keeping in mind the above principles of law and coming back to the
facts of the present cases, we see that the petitioners are in custody for
periods ranging from one year four months to two years one month.
Considering that the minimum sentence of imprisonment that will be
attracted in case of conviction is ten years and the maximum is twenty
years, in my opinion it cannot be said that there is prolonged incarceration
of the petitioners.
17. It was argued on behalf of the petitioners that practically no progress
has been made in the trials in all the four cases. This factor coupled with
the period of custody should persuade me to allow the prayer for bail. I do
not agree. None of the petitioners has been in custody for a period which
27
exceeds a substantial part of the maximum sentence prescribed for the
offence. It cannot also be said that there is absolutely no possibility of early
conclusion of the trials in the four cases. The number of witnesses in the
four cases are not very large. The Trial Court should make all efforts to
ensure speedy disposal of the trials without granting unnecessary
adjournments and if necessary, by fixing frequent schedules for examination
of witnesses. The Trial Court should not hesitate to issue appropriate orders
for securing the presence of recalcitrant witnesses, in exercise of power
under Bharatiya Nagarik Suraksha Sanhita, 2023 (or the Code of Criminal
Procedure, 1973).
18. In my considered opinion, in none of the four cases before me, the
stage has come yet for Article 21 of the Indian Constitution to come into
play overriding the restrictions in Section 37 of the NDPS Act.
19. In view of the aforesaid all the four applications stand dismissed. The
petitioners in each case will be at liberty to renew his/her prayer for bail in
the event the trial in his/her case does not conclude within 15 months from
the next date fixed for hearing.
20. CRM (NDPS) 388 of 2026, CRM (NDPS) 337 of 2026, CRM (NDPS)
336 of 2026 and CRM (NDPS) 390 of 2026 are accordingly disposed of.
21. Urgent Photostat certified copies of this judgement and order, if
applied for, be supplied to the parties on compliance of all necessary
formalities.
( Arijit Banerjee, J. )