Prolonged pre-trial custody raises constitutional issues under Article 21, warranting bail under specific conditions despite statutory embargo in drug-related offenses.

O R D E R

This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( BNSS ), 2023.

2. The petitioner is accused No.2 in Crime No.10/2021 of Excise Range Office, Vandiperiyar. The offences alleged against the petitioner are punishable under Sections 29 , 20(b)(ii)(C), 25, 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS' Act').

3. The prosecution case is that, on 26.02.2021, the accused were found in possession of, and transporting, 1.1 kg of hashish oil and 20.970 kg of ganja in a car bearing Registration No. KL-34-A-8388.

4. The petitioner was arrested on 26.02.2021, and he has been in judicial custody since then.

5. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

6. The learned counsel for the petitioner submitted that there is no possibility that the trial will be over in the near future.

The learned counsel further submitted that, as the petitioner has been in judicial custody for a prolonged period exceeding four years, his further detention is illegal.

7. The learned Senior Public Prosecutor opposed the bail plea of the petitioner contending that, having regard to the nature of the allegations, the bail application is hit by the rigour contained in Section 37 of the NDPS Act.

8. This Court obtained a report from the learned Special Judge regarding the status of the trial. The learned Special Judge has reported thus:

“At the present stage of the case CW1 was examined as PW1 on 04.01.2025 and Exts.P1 to P34 marked. A1,A2,A4,A5,A6 had completed cross examination of PW1. Cross examination of A3 is pending. The accused no.2,4,5 and 6 are under trial prisoners. A6 was granted bail vide Crl.M.C No.57/2024 dated 08.04.2024 but was not enlarged on bail. The case is posted to 24.11.2025.

I may humbly submit that I took charge of this Court on 19.05.2025. However notification from the Government u/s.36(2) of the NDPS Act has not been so far received from the Government. I am expecting the Government notification soon.” [sic.]

9. The report submitted by the learned Sessions Judge shows that CW1 was examined on 04.01.2025. Thereafter, there has been no progress in the trial. The report further reveals that the learned Sessions Judge is awaiting a notification from the Government under Section 36(2) of the NDPS Act empowering him to conduct the trial in the matter. The learned Special Judge took charge on 19.05.2025. It is unfortunate that the Government has not yet taken any steps to issue the required notification under Section 36(2) of the NDPS Act.

10. In Sanjay Chandra v. CBI [2012 1 SCC 40] , the Honourable Supreme Court has observed as follows:

“When the undertrial prisoners are detained in jail custody to an indefinite period, Art.21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not se