Prolonged incarceration due to prosecution delays can override statutory bail restrictions under the NDPS Act, affirming the right to personal liberty under Article 21.

ORDER :

This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the 1^st accused in Crime No.1076 of 2022 of Thodupuzha Police Station. The above case is registered alleging offences punishable under Section 20(b)(ii)(c), 29 and 31 of NDPS Act, 1985 . Petitioner was arrested on 27.07.2022 and he is in custody.

3. The prosecution case is that the 2^nd accused handed over 34.600 Kg of Ganja to the 1^st accused on 27.07.2022 and the detecting officer and party found the 1^st accused with 34.600 Kg of ganja kept in three plastic bags for sale. Hence, it is alleged that the accused committed the offence.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner submitted that the petitioner is in custody from 27.07.2022. The counsel submitted that he is in custody for more than two years. The counsel submitted that the petitioner is ready to abide any conditions imposed by this Court, if this Court grant him bail.

6. The public prosecutor opposed the bail application and submitted that he has criminal antecedents including NDPS case.

7. The counsel appearing for the petitioner raised a short point. The counsel relied on the judgment of the Apex Court in Ankur Chaudhary v. State of Madhya Pradesh [2024 Live Law (SC) 416] and Nitish Adhikary @ Bapan v. The State of West Bengal [SLP to Appeal (Crl.) No.5769 of 2022] and also Hasanujjaman and others v. The State of West Bengal [SLP to Appeal (Crl.) No.3221 of 2023] and submitted that when there is incarceration for more than one year and four months, the rigour under Section 37 of the NDPS Act can be diluted. The counsel submitted that, in this case the petitioner is in custody from 27.07.2022 and therefore the petitioner is entitled bail.

8. The Public Prosecutor seriously opposed the Bail Application. The Public Prosecutor submitted that the allegation against the petitioner is very serious and the quantity of contraband seized is commercial quantity.

9. This Court considered the contentions of the petitioner and the Public Prosecutor. In Ankur Chaudhary's case (Supra) the Apex Court observed like this:-

“6. Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.”

10. In Hasanujjaman's case (supra), the Apex Court considered a case in which the accused were in custody for one year and four months. In that case also the contraband seized is commercial quantity. Even then the Apex Court granted bail.

11. In Nitish Adhikary's case (supra) case the Apex Court observed like this:-

“During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.”

12. This Court in Shuaib A.S v. State of Kerala [2025 SCC Online 618] this Court observed like this:-

10. Anyhow, as of now, Crl.M.C.No.8400/2024 filed by the NCB seeking to examine certain witnesses, was disposed on 06.01.2025 by another learned Single Judge. As per the order, even though the learned Single Judge found the reason for dismissal