In cases involving commercial quantities of narcotic drugs under the NDPS Act, the statutory embargo under S. 37(1)(b) prevails; prolonged incarceration does not provide sufficient grounds for bail if the accused has criminal antecedents or if the twin conditions under S. 37 remain unsatisfied.

ORDER

This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 , seeking regular bail.

2. The applicant is the accused No.4 in Crime No.1000/2023 of Perinthalmanna Police Station, Malappuram District. The offences alleged are punishable under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act). The case is now pending as SC No.450/2024 before the Special Court for SC/ST(POA) Act and NDPS Act cases, Manjeri.

3. The prosecution case, in short, is that on

11.07.2023 at about 2.30 pm, the accused Nos. 1 and 2 were found in possession of 165.9 kg of ganja, which is stated to have been supplied to them by the accused No.3. The applicant facilitated the purchase of the contraband and thereby committed the offences.

4. I have heard Adv. P.L.Mary Treasa, 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 two years 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.

6. 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 decision in Mohit Aggarwal (supra) was not brought to the notice of the Court that rendered the decision in Ankur Chaudhary (supra). The decision in Mohit Aggarwal (supra) was rendered by a bench of three Judges and hence the said decision is binding by the law of the precedents (See Shahina v.

State of Kerala, 2025 (4) KLT 314).

7. In State of Karnataka v. Sri Darshan (2025 SCC Online SC 1702), the Supreme Court had observed that the mere prospect of a prolonged trial cannot, by itself, outweigh the gravity of the offence, the incriminating material gathered during investigation or the likelihood of tampering with witnesses. Quite recently, in Union of India v. Vigin K.Varghese [2025 SCC OnLine SC 2440], the Hon'ble Supreme Court while setting aside two orders of the Bombay