P&H HC Grants Bail In 1-Kg Heroin Case, Saying Article 21 Speedy-Trial Rights Can Override NDPS Section 37 Amid Trial Delay

The petitioner sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in FIR No. 112 dated 27 July 2024, registered under Sections 21(c) and 29 of the NDPS Act, 1985, with Section 25 of the Arms Act, 1959 added subsequently.

The case concerned the alleged recovery of 1 kg of heroin and an illegal country-made pistol with live cartridges.

The petitioner submitted that he had been in custody since his arrest on 27 July 2024, that the trial was delayed, and that mandatory NDPS Act requirements had not been complied with. The State opposed bail, relying on the seriousness of the allegations and Section 37 of the NDPS Act.

The challan was presented on 18 January 2025; of 15 prosecution witnesses, four had been examined. The custody certificate recorded incarceration of 3 months and 19 days and involvement in other cases/FIRs. The judgment does not reconcile that recorded custody period with the stated arrest date.

Section 483 of the BNSS provides the procedural basis for the regular-bail application.

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

The Court held that the Section 37 restrictions must be considered alongside the accused’s Article 21 right to life and personal liberty, including the right to a speedy trial; prolonged incarceration caused by unjustified delay may, in an appropriate case, warrant conditional liberty notwithstanding the statutory embargo.

In support, the Court relied on the speedy-trial principles in Hussainara Khatoon v. Home Secretary, State of Bihar, Abdul Rehman Antulay v. R.S. Nayak, Javed Gulam Nabi Shaikh v. State of Maharashtra, Mohd. Muslim @ Hussain v. State (NCT of Delhi) and other cited Supreme Court decisions, as discussed in Kulwinder v. State of Punjab.

It also relied on Maulana Mohd. Amir Rashadi v. State of U.P. and other cited authorities for the proposition that antecedents alone do not necessarily justify refusal of bail in the case under consideration.

The Court considered that only four of the 15 cited prosecution witnesses had been examined and that the petitioner’s objections to the prosecution case raised matters for trial, which it declined to determine at the bail stage.

It found no tangible material indicating that the petitioner was likely to abscond or interfere with prosecution evidence.

Although the State relied on Section 37 and the petitioner’s other cases, the Court held that antecedents were not, by themselves, sufficient to deny bail in this FIR.

Applying the Article 21 speedy-trial principles set out in Kulwinder, the Court concluded that further pre-trial detention was not warranted in the circumstances and that the Section 37 rigour did not preclude bail on the ground of undue delay.

The Court imposed conditions including non-interference with evidence, attendance at trial, surrender of any passport, provision of a current cellphone number, and monthly affidavits stating that the petitioner had not been involved in another offence after release. The State may seek cancellation of bail for breach of the conditions or other sufficient cause.

The Court clarified that its observations were not an expression of opinion on the merits of the case.