[NDPS Act] Conditional Liberty Overrides Statutory Embargo, Prolonged Incarceration Affects Fundamental Rights: Uttarakhand High Court

In allowing his plea of bail of the ground of prolonged Incarceration Justice Alok Kumar Verma underscored,

“The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act”.

Case Background:

The petitioner had been in judicial custody since January 24, 2020, under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The case stemmed from an incident on January 24, 2020, when a police team apprehended the petitioner based on a tip-off. During the search 6.033 kg of charas was recovered from the petitioners bag.

Mr. Karan Singh Dugtal, representing the petitioner, argued that his client had been falsely implicated. He contended that the recovery was planted and questioned the absence of public witnesses during the search. Dugtal highlighted the individual's clean criminal record and prolonged detention without trial as grounds for bail.

Mr. Rakesh Negi, representing the State, opposed the bail application but conceded that the individual had no prior criminal antecedents. Negi acknowledged that the trial was expected to take more time.

Upon considering the rival contentions and scrutinising the record the court noted the prolonged incarceration of the applicant and referenced the Supreme Court's ruling in Rabi Prakash vs. The State of Odisha, 2023, which supports the notion that conditional liberty must override statutory embargoes in the face of prolonged detention.

The court went to emphsise that even a statutory embargo creater under Section 37(1)(b)(ii) of the NDPS Act must give way to conditional liberty as prolonged Incarceration has the tendency to militate the precious fundamental right guaranteed under Article 21 of the Constitution.

In alignment with these observations the court without expressing an opinion on the merits of the case allowed the bail application.

Case Title: Amar Singh Bora Vs State of Uttarakhand

Citation: 2024 LiveLaw (Utt) 13

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