Prolonged incarceration and undue delay in trial constitute valid grounds for granting bail, even in commercial quantity cases under Section 37 of the NDPS Act, as the constitutional mandate of Article 21 overrides statutory bars to prevent pre-trial detention from becoming punitive.

MANISHA BATRA, J (ORAL):

The instant one is the second petition filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS') by the petitioner seeking grant of regular bail in case bearing FIR No. 94 dated 19.06.2024 registered under Sections 21, 27-A and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') at Police Station Chheharta, District Amritsar. His previous petition had been dismissed vide order dated 15.09.2025.

2. The petitioner along with the co-accused has been booked for the commission of aforementioned offences and is facing trial for the allegations that on 19.06.2024, he was found in conscious possession of 1 kg 500 grams of heroin. The same was taken into possession. The petitioner and co-accused were formally arrested. Investigation now stands concluded.

3. It is argued by learned counsel for the petitioner that he has been in custody for a period of more than 01 year and 09 months. There are no chances of conclusion of trial in near future. Co-accused Gurjant Singh has been extended benefit of bail. On parity, he too deserves to be released on bail. Each day spent by him in custody has given rise to a fresh cause of action for seeking bail. His prolonged incarceration is militating against the provisions of Article 21 of the Constitution of India. It is, thus, argued that the petitioner deserves to be released on bail.

4. Notice of motion.

5. Learned State counsel has advance notice of the petition and is ready to argue the matter. He has placed on record custody certificate of the petitioner and has argued that the petition is not maintainable, the same is being second one. The previous petition filed by the petitioner had been dismissed by passing a detailed order. There is no substantive or drastic change in the circumstances. Therefore, it is stressed that the petition does not deserve to be allowed.

6. This Court has heard the rival submissions made by learned counsel for the parties at considerable length.

7. The petitioner along with the co-accused is alleged to have been found in conscious possession of commercial quantity of the contraband- heroin. He has been in custody since 19.06.2024. Similarly situated co-accused Gurjant Singh has been extended benefit of bail. Though the previous petition filed by the petitioner had been dismissed on 15.09.2025, however, the trial has not progressed much as 16 prosecution witnesses are yet to be examined and therefore, obviously the same will take considerable time to conclude. This factor, in the opinion of this Court, is a ground to move for bail afresh. The Hon'ble Apex Court has observed in a catena of cases that an accused cannot be kept in custody for an indefinite period of time, and the bail application can be considered on its own merits even if it is filed repeatedly. It has also been held that every day spent in custody can provide a new cause of action for filing a bail application under certain circumstances. This principle is a part of the broader approach emphasizing that law prefers bail over jail, aiming to balance the rights of the accused with the requirements of the criminal justice system. Prolonged detention itself is a ground for reconsideration of bail since the settled principle of law is that detention prior to trial should not become punitive. Trial is likely to take time to conclude as most of the prosecution witnesses are yet to be examined. It is well settled proposition of law that grant of bail on account of delay in trial and long period of incarceration is to be considered in the light of Section 37 of the NDPS Act. Reliance in this regard can be placed upon the observations made by Hon'ble Apex Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC Online SC 352, wherein it was held that grant of bail on account of undue delay in trial cannot be said to be fettered under Section 37 of the NDPS Act, given the imperative of Section 436-A of Cr.P.C. which i