NDPS Act | Grant Of Bail In Commercial Quantity Case Due To Undue Delay In Trial, Not Fettered By Bar Of S.37: Punjab & Haryana HC

The Punjab & Haryana High Court has made it clear that the grant of bail in a case pertaining to commercial quantity, on the ground of undue delay in trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985.

As per Section 37 of the NDPS Act, the Court can grant bail to an accused in case of commercial quantity only after hearing the public prosecutor. If the prosecutor opposes bail, the accused has to satisfy the court that (a) there are reasonable grounds for believing that he is not guilty of such an offence and that (b) he is not likely to commit any offence after being released from jail. This provision makes it difficult to secure bail in NDPS cases.

Justice Sumeet Goel said, "While dealing with bail petition in a case governed by the rigours of Section 37 of the NDPS Act, 1985, the Court must strike a judicious balance between the legislative intent to curb the menace of drugs and the sacrosanct right of the accused to a fair and expeditious trial. Prolonged incarceration, without justifiable cause, risks transforming pre-trial detention into punitive imprisonment, an outcome antithetical to the principle of justice and equity.Ergo, the unequivocal inference is that where the trial has failed to conclude within a reasonable time, resulting in prolonged incarceration, it militates against the precious fundamental rights of life and liberty granted under the law and, as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act, 1985 ought to be considered as per facts of a given case. In other words, grant of bail in a case pertaining to commercial quantity, on the ground of undue delay in trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985."

The Court added that the stringent rigours of Section 37 of the NDPS Act, 1985 must be meticulously scrutinized against the backdrop of accused's fundamental right to a speedy trial. "The right to life and personal liberty cannot be rendered nugatory by unwarranted delays in the judicial process, particularly where such delay is neither attributable to the accused nor justified at the end of the prosecution by cogent reason," the bench opined.

It further said that an individual cannot be kept behind bars for an inordinate period of time by taking refuge in rigours laid down in Section 37 of the NDPS Act, 1985.

"A Court of law is duty-bound to ensure that it does not become complicit in violation of an individual's fundamental rights, notwithstanding anything contained in a statute," the Court observed.

These observations were made while hearing a regular bail plea wherein the petitioner Kulwinder was booked under Sections 22, 61 & 85 of the NDPS Act for allegedly trading in contraband.

Counsel for the petitioner argued that no recovery, as alleged in the prosecution case, was effected from the petitioner and rather he was picked up by the Police official from his residence and implicated into a false case.

After examining the submission, the Court while referring to landmark decision of Apex Court in Hussainara Khatoon vs. Home Secy., State of Bihar  [(1980) 1 SCC 81] to underscore that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court."

Sword Of Damocles Can't Hang On Accused For Indefinite Period

Justice Goel highlighted that the right to speedy trial begins with the actual restraint imposed at the time of the arrest of the accused and consequent incarceration which continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result due to impermissible and avoidable delay since the time of the commission of the offence till the criminal proceedings consummate into a finality, could be averted.

"The overcrowded Court-dockets, the heavy volume of work and the resultant pressure on the prosecution and the Police, indubitably keeps the entire criminal jurisprudential mechanism under stress and strain," the Court added.

It further said that however, this cannot be an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of time. It does not serve any credit to the criminal justice system, rather it makes for a sad state of affairs.

In the present case, the Court noted that as per the custody certificate dated 08.01.2025 filed, the petitioner has suffered incarceration for more than 02 years and 08 months.

Perusing the orders of the Trial Court, the bench opined that, "the trial is procrastinating, conclusion thereof is not visible in near future and the delay in culmination thereof cannot be attributed to the petitioner."

It further added that the Trial Court orders indicate that repeatedly summons as also bailable warrants have been issued against the Police officials who have not turned up to have their testimonies recorded as prosecution witnesses.

The judge opined that the long inordinate custody of the petitioner as an undertrial, without him being responsible for procrastination of the trial, entitles him to grant of regular bail in the factual matrix of the case in hand.

Mr. Viren Sibal, Advocate for the petitioner.

Ms. Avneet, AAG Punjab.

Title: Kulwinder v. State of Punjab

Citation : 2025 LiveLaw (PH) 11

Click here to read/download the order