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

O R D E R

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.1 in Crime No.20 of 2024 of Excise Range Office, Manjeri, Malappuram District now pending as SC. No.1116/2024 on the files of the Special Court for SC/ST (PoA) Act & NDPS Act Cases, Manjeri. The offences alleged are punishable under Sections 20 (b)(ii)(C) 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 06.04.2024 at about 11.30 pm, the applicant along with other accused were found to be in possession and transportation of 1.058 kgs of Hasish oil in a Toyota Qualis bearing registration No. KL-10- AP-0695 at Perumparamba 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 BA No.8126/2025, 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 20 (b)(ii)(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 fromUnion 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, inNarcotics 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 decision inMohit Aggarwal(supra) was not brought to the notice of the Court that rendered the decision inAnkur Chaudhary(supra). The decision inM