Three-and-a-half years without framing charges amounts to “preventive detention in disguise”: Manipur HC grants bail in commercial-quantity NDPS case

The petitioner was arrested on 27 February 2023 while allegedly transporting 487 grams of heroin, a commercial quantity, near Kangvai Bazaar, Bishnupur. FIR No. 04(02)2023 NAB-PS was registered under Sections 21(c), 60(3) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The prosecution filed the charge-sheet on 25 August 2023, and the Special Court took cognizance on 6 October 2023. The petitioner’s application for default bail was rejected after the charge-sheet was filed and cognizance was taken.

At the time of consideration by the High Court, the petitioner had remained in custody for approximately three and a half years, but charges had not yet been framed and the trial had not commenced.

The prosecution attributed the delay to law-and-order disturbances in Manipur, difficulties in producing the accused, and his medical condition.

Whether the twin conditions under Section 37(1)(b) of the NDPS Act must necessarily be satisfied while considering bail primarily on the ground of prolonged incarceration and delay in trial?

Whether the petitioner was entitled to bail despite the alleged recovery of commercial quantity, in view of his prolonged custody without framing of charge, absence of criminal antecedents, and medical condition?

The Court applied Section 37(1)(b) of the NDPS Act, which requires the prosecution to be heard and the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and is not likely to commit any offence while on bail.

The Court held that these twin conditions apply even where bail is sought on the basis of prolonged incarceration and delay in trial.

Article 21 protects the right to speedy trial, and prolonged incarceration without commencement of trial may justify bail, but must be considered consistently with Section 37.

The Court distinguished the automatic half-period rule under Section 436A Cr.P.C., now reflected in Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, because the petitioner had not undergone half of the maximum sentence.

Under Noor Aga v. State of Punjab and Gorakh Nath Prasad v. State of Bihar, the prosecution must first establish foundational facts and a prima facie case before the reverse presumptions under Sections 35 and 54 of the NDPS Act operate against the accused.

The Court first applied Section 37 and held that the record did not disclose sufficient material at the bail stage to establish a preconceived culpable mental state or to show that the petitioner was a habitual offender.

Although the recovery was of commercial quantity, the prosecution case was that the petitioner had been asked by another person, Kapthang Mate, to carry the bag; there was no substantive material demonstrating prior involvement in narcotic offences or any other criminal activity.

Consequently, the Court found that the first twin condition was not fully negated and that, as a first-time offender, the petitioner could not be presumed likely to commit a similar offence while on bail.

The petitioner had remained in custody for over three and a half years, with no charge framed nearly three years after cognizance and with the trial not having commenced.

The Court rejected the explanation that law-and-order conditions and non-production prevented the framing of charge, noting that applicable video-conferencing rules permitted production of accused persons and framing of charges through video conference.

The prolonged detention, without commencement of trial and coupled with the petitioner’s continuing medical needs, was held to amount to “preventive detention in disguise”.

However, on the facts, the Court found that the case satisfied the Section 37 requirements sufficiently for bail: there was inadequate material at that stage to establish the petitioner’s culpable mental state or habitual criminality, and no basis to presume that he would commit a similar offence if released.

Considering his first-offender status, more than three and a half years of custody without framing of charge, and serious medical condition, the Court allowed the bail application.

The petitioner was released on a personal recognizance bond of ₹1,00,000 with one surety of like amount, subject to conditions including appearance before the Special Court on every date, non-interference with witnesses or evidence, restriction on leaving Manipur without permission, surrender of passport, and liberty to the State to seek cancellation upon breach.

The Court clarified that its observations were confined to the bail application and would not prejudice the trial or consideration of charge.