After 17 Months In Custody And Just 2 Of 13 Witnesses Examined, P&H HC Grants Bail In 3-Kg Heroin Case Despite NDPS Section 37 Bar

The petitioner sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in an FIR alleging recovery of 3 kg of heroin and two illegal pistols, with offences registered under Sections 21(C), 25 and 29 of the NDPS Act, 1985, and Section 25 of the Arms Act.

He had been in custody since 21 May 2025. The challan was presented on 17 November 2025; of the 13 prosecution witnesses cited, only two had been examined by the time of the bail hearing.

The State opposed bail, citing the seriousness of the allegations and the restrictions under Section 37 of the NDPS Act; the custody certificate also showed the petitioner’s involvement in other cases.

Section 483 of the BNSS provides the procedural basis for the High Court’s consideration of regular bail.

For offences involving commercial quantity under the NDPS Act, Section 37 ordinarily requires the Court to hear the Public Prosecutor and be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit an offence while on bail.

The Court applied the constitutional guarantee of life and personal liberty under Article 21, including the right to a speedy trial, and held that prolonged incarceration caused by trial delay may justify bail notwithstanding Section 37’s restrictions.

It relied on the authorities discussed in Kulwinder v. State of Punjab and on the Supreme Court’s decision in Sri Sujit Das and others v. Union of India, as quoted in the judgment, concerning the relationship between Article 21 and Section 37.

The Court also relied on Maulana Mohd. Amir Rashadi v. State of U.P. and other cited authorities for the proposition that antecedents alone do not determine entitlement to bail in the case under consideration.

The Court noted that the petitioner had been incarcerated for 1 year, 5 months and 16 days, while only two of the 13 prosecution witnesses had been examined.

It considered that further detention as an undertrial was unwarranted in the circumstances and treated the delay in trial, in light of the petitioner’s Article 21 rights, as a basis to grant bail notwithstanding Section 37.

The Court did not determine the disputed allegations or the petitioner’s arguments concerning compliance with the NDPS Act, reserving those matters for trial; it also found no tangible indication that he would abscond or interfere with prosecution evidence.

Although the petitioner was shown to be involved in other cases, the Court held that this fact alone did not justify refusing bail in the present FIR.

Bail was subject to the listed conditions, including not tampering with evidence, attending trial, depositing any passport, notifying the Investigating Officer/SHO of his cellphone number, and filing a monthly affidavit concerning involvement in further offences; the State may seek cancellation of bail for breach of conditions or other sufficient cause.

The Court clarified that its observations would not affect the merits of the case.