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

ORDER :

The petitioner is the accused in Crime No. 1358/2024 of Thalayolaparambu Police Station. The above case is registered against the petitioner alleging offences punishable under Secs. 20(b)(ii)C, 22(b), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').

2. On 09.10.2022, at about 07:45 AM, The Sub Inspector of the Thalayolaparambu Police Station, who was resting after night patrol duty got a reliable information that prohibited substance ganja was being transported using a vehicle bearing Regn No : KA-03-NB-3645 which was coming from Ernakulam side to Thalayolaprambu. On getting such an information, the Sub Inspector and party reached Vadayar Junction at about 08:00 AM. When the vehicle reached Vadayar Junction at about 08:25 AM, they intercepted the same. Accused No. 1 was driving the vehicle and Petitioner/Accused No. 2 was sitting on the seat just behind the driving seat. Thereafter, the party procured the presence of independent witnesses. After securing the presence of the Gazetted Officer, the Sub Inspector and party conducted body search of Accused Nos. 1 and 2. It is alleged that 1.3 gms of MDMA was seized from the pocket of the shorts worn by the Petitioner. It is further alleged that on conducting a thorough search of the vehicle, it was found that there was around 92.34 KG of ganja kept in different packets. Thus the accused committed the offences.

3. Heard counsel for the petitioner and the Public Prosecutor for the respondent.

4. 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 09.10.2022 and therefore the petitioner is entitled bail.

5. 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.

6. 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.”

7. 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.

8. 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.”

9. 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 Singl