P&H HC Grants Bail In 235g Heroin Case After Nearly 2 Years In Custody, With No Prosecution Witnesses Examined

In brief

The question

Whether the petitioner should be released on regular bail despite the statutory restriction under Section 37 of the NDPS Act, given his period of custody and the delay in commencement of evidence.

The court held

The Court allowed the petition and directed the petitioner’s release on bail upon furnishing bail and surety bonds to the satisfaction of the Trial Court or Duty Magistrate, subject to usual terms and additional conditions, including regular appearance, non-interference with evidence, no similar offence, surrender of any passport, and no delay of trial.

It also directed

The State was permitted to seek cancellation of bail in the event of breach or other sufficient cause.

01Facts

The petitioner sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in an NDPS case arising from an FIR registered under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, with Sections 61 and 85 later added.

pp. 1–2 · ¶ 1, 3–4

The prosecution alleged that 500 grams of heroin were recovered from co-accused Manjeet Singh and that, following the petitioner’s disclosure, 235 grams were recovered from a place near a canal.

pp. 1–2 · ¶ 1, 3–4

The petitioner had been in custody since 20 November 2024; the final report had been filed, but none of the 14 prosecution witnesses had been examined.

pp. 1–2 · ¶ 1, 3–4

The co-accused had been granted bail by a coordinate Bench.

pp. 1–2 · ¶ 1, 3–4

02Issues

i.Whether the petitioner should be released on regular bail despite the statutory restriction under Section 37 of the NDPS Act, given his period of custody and the delay in commencement of evidence.

pp. 2–4 · ¶ 4–7

ii.Whether the petitioner was entitled to bail on the ground of parity with the co-accused who had been granted bail.

p. 2 · ¶ 4

03Law Applied

Section 37 of the NDPS Act imposes restrictions on bail in cases involving specified serious offences and commercial quantities.

pp. 3–4 · ¶ 6

However, the Court relied on the Supreme Court’s decisions in Rabi Prakash v. State of Odisha, Ankur Chaudhary v. State of Madhya Pradesh and Mohammad Muslim alias Hussain v. State (NCT of Delhi) for the principle that prolonged incarceration and undue delay in trial may justify bail notwithstanding Section 37, in light of the right to liberty under Article 21 of the Constitution.

pp. 3–4 · ¶ 6

The Court also referred to Nandalal Mondal alias Abhay Mondal v. State of West Bengal and Santosh Pawar v. State of Chhattisgarh, which support bail in NDPS cases involving commercial quantities where prolonged custody is a material consideration, and to Satender Kumar Antil v. Central Bureau of Investigation concerning the relevance of Section 436A of the Code of Criminal Procedure, 1973.

p. 4 · ¶ 6

Provisions in the judgment · 8 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 483

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 21 Section 29 Section 61 Section 85 Section 37

Code of Criminal Procedure, 1973 Section 173 Section 436

04Reasoning

The Court noted that the petitioner had remained in custody since 20 November 2024 and that, despite the filing of the final report, not one of the 14 prosecution witnesses had been examined.

pp. 3–4 · ¶ 5–7

It considered that the trial was unlikely to conclude soon and that continued detention would serve no useful purpose.

pp. 3–4 · ¶ 5–7

Applying the cited Article 21 principles, the Court held that prolonged incarceration and trial delay warranted release despite the State’s reliance on Section 37 of the NDPS Act.

pp. 3–4 · ¶ 5–7

The petitioner’s parity submission was recorded, including the co-accused’s bail, but the Court’s stated basis for allowing the petition was the petitioner’s custody and the delay in trial.

p. 2, 4 · ¶ 4, 7