Article 21 Cannot Override Section 37 NDPS Act Bar Solely on Grounds of Delay Without Substantial Incarceration

On January 10, 2025, during a search conducted by the Enforcement Directorate at the accused’s residence, 66 kg of Ganja was recovered from a blue plastic drum and two sacks.

The accused, Bishu Kumar Tripura, evaded arrest initially but was apprehended on May 13, 2025.

Two previous bail applications (B.A. No. 70 of 2025 and B.A. No. 42 of 2026) were rejected by the High Court.

The petitioner moved this third application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, citing 373 days of incarceration, slow trial progress (9 out of 22 witnesses examined), and claiming the recovery site was Government forest land.

1. Whether the prolonged incarceration and alleged delay in trial constitute a violation of Article 21 sufficient to override the statutory rigours of Section 37 of the NDPS Act.

2. Whether the recovery of contraband from land recorded as Government "Khash" land entitles the accused to bail under the facts of the case.

Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, which mandates a "twin condition" satisfaction for bail involving commercial quantities.

Narcotics Control Bureau v. Mohit Agarwal (2022), establishing that mere length of custody or filing of a charge sheet are not persuasive grounds for bail under the NDPS Act.

State of Punjab v. Sukhwinder Singh @ Gora (2026), which held that the right to a speedy trial under Article 21 must be read harmoniously with Section 37 and cannot be used solely to override statutory bars.

The "melt down" theory from Union of India v. K.A. Najeeb (2021) and Syed Iftikhar Andrabi v. NIA (2026), whereby Article 21 may justify bail if incarceration is "unduly prolonged" and a substantial part of the sentence has been served.

The court evaluated the petitioner’s claim of trial delay against the total potential sentence and observed that the accused is charged under Section 20(b)(ii)(C) of the NDPS Act, which carries a maximum sentence of 20 years.

Given that the accused has been in custody since May 2025 (approx. one year) and nine witnesses have already been examined, the court found that the trial is not moving at an "uncertain" pace nor has the accused served a "substantial part" of the potential sentence.

The court distinguished the present case from Syed Iftikhar Andrabi, where the accused had been detained for nearly six years with hundreds of witnesses remaining.

Regarding the land ownership, the court noted that evidence suggested the house was occupied by the accused despite the title being with the Government.

The bail application was rejected, and the Court directed the Special Judge, Sonamura, to endeavor to dispose of the case at the earliest.