Prolonged incarceration does not alone justify bail under the NDPS Act if statutory conditions are unmet.

ORDER

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, BNSS ), seeking regular bail.

2. The applicant is the accused No.2 in Crime No.26/2024 of Mananthavady Excise Range Office, Wayanad now pending as SC No.410/2024 on the files of the Additional District and Sessions Court (ADHOC-II), Kalpetta, Wayanad District. The offences alleged are punishable under Sections 22 (c), 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act').

3. The prosecution case, in short, is that on 23.04.2024, at about 09.10 a.m., the excise team, which was conducting the vehicle check duty at the Tholpetty check post, stopped and searched a car bearing registration No.KL-10AQ-110, owned by the accused No.3. During this search, accused No.1 and the applicant, who were travelling in the car, were found in possession of 100.222 grams of methamphetamine concealed in its dashboard and thereby the applicant committed the offences alleged.

4. I have heard Sri.P.Mohamed Sabah, the learned counsel for the applicant and Sri. M.C.Ashi, the learned Senior Public Prosecutor. Perused the case diary.

5. The learned counsel for the applicant submitted that the applicant is entitled to be released on bail since he has been in custody for more than one year and nine months and there is no possibility of concluding the trial within a reasonable time. On the other hand, the learned Senior Public Prosecutor submitted that the offence under the NDPS Act would fall under the category of “grave offence” and long incarceration alone should not be the criterion while considering the bail application. The learned Senior Public Prosecutor further submitted that the bail application filed by the applicant on an earlier occasion, as B.A. No.11603/2025, on the ground of non- communication of the grounds of arrest, was dismissed by this court as per Annexure 2 order.

6. The question that arises for consideration is whether an accused facing an indictment for an offence punishable under Section 22 (c) of the NDPS Act for possessing a commercial quantity of a narcotic drug is entitled to be released on bail due to long incarceration.

7. There are a series of decisions of the Supreme Court starting from Union of India v. K.A Najeeb [(2021) 3 SCC 713] , which held that stringent provisions in the special statutes for the grant of bail do not take away the power of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. In V.Senthil Balaji v. Deputy Director, Directorate of Enforcement [2024 SCC OnLine SC 2626], the Supreme Court, while considering the question of bail in PMLA proceedings, held that when a trial of a complaint under PMLA is prolonged beyond reasonable limits, the Constitutional Courts can always exercise its jurisdiction to grant bail. However, in Narcotics Control Bureau v. Mohit Aggarwal [(2022) 18 SCC 374] , the three Judge Bench of the Supreme Court held that length of the period of custody or that the charge-sheet had been filed or even that the trial has not commenced by themselves are not considerations that can be treated as persuasive grounds to grant bail under Section 37 of the NDPS Act. Later, in Ankur Chaudhary v. State of Madhya Pradesh [2024 SCC OnLine SC 2730], a two Judge Bench of the Supreme Court had observed that failure to conclude the trial within a reasonable time resulting in prolonged incarceration violates the fundamental right guaranteed under Article 21 of the Constitution of India and in such cases, the constitutional liberty overrides the statutory embargo created under Section 37(1)(b) of the NDPS Act. The de