Regular Bail under NDPS Act – High Court of Punjab and Haryana

Facts: The petitioner, detained in judicial custody since 23 July 2022, moved the High Court of Punjab and Haryana for regular bail under Section 439 of the Code of Criminal Procedure, challenging an FIR dated 19 July 2022 that alleged his participation in the possession of two hundred strips of Lomotil tablets. The alleged offences were punishable under Section 22‑C and, subsequently, Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which impose stringent conditions on the grant of bail in narcotics cases. The petitioner had endured more than two years of under‑trial incarceration, a period that the Court deemed excessive in view of the principle of personal liberty enshrined in Article 21 of the Constitution. The sole material linking the petitioner to the contraband consisted of a disclosure statement made by a co‑accused, Janak Raj, presented without any corroborative forensic or eyewitness evidence, and no recovery of the alleged tablets was effected from the petitioner. The State opposed the bail application, contending that the seriousness of the allegations and the rigor of Section 37 of the NDPS Act barred the grant of liberty. The Court, after scrutinizing the limited evidentiary value of the co‑accused's statement, the impact of prolonged detention, and the applicability of Section 37, ultimately granted regular bail subject to statutory conditions designed to prevent misuse of liberty, tampering with evidence, absconding, and commission of further offences. The conditions imposed required the petitioner to furnish his passport to the investigating officer, provide his current mobile telephone number, and abstain from any act that might prejudice the investigation. He must also refrain from delaying the trial proceedings, submit a monthly affidavit affirming non‑involvement in any offence, and accept that breach of any condition would justify immediate cancellation of the bail. During the hearing, the petitioner submitted that the delay in bringing the case to trial stemmed from procedural adjournments requested by the prosecution, thereby underscoring the Court's duty under Article 21 to prevent the denial of liberty through unreasonable postponement. The State, for its part, cited precedents emphasizing the strictness of Section 37 in narcotics matters, arguing that the alleged possession of a substantial quantity of psychotropic substances justified a denial of bail to safeguard public order. In rebuttal, the Court observed that while Section 37 empowers the judiciary to deny bail on grounds of likely disappearance of the accused or tampering with evidence, such discretion must be exercised proportionately, bearing in mind the presumption of innocence until proven guilty. The Court further articulated that the assessment of 'reasonable grounds of innocence' under sub‑clause (b)(i) requires a qualitative evaluation of the material on record, not a mere quantitative extrapolation from the allegation of possession. Accordingly, the absence of forensic recovery or independent eyewitness identification rendered the co‑accused's statement insufficient to overcome the evidentiary threshold required for a denial of bail. Having weighed these considerations, the Court fashioned a bail order that calibrated the liberty interest of the petitioner against the State's interest in preventing potential obstruction of justice, thereby embodying the balanced approach endorsed by jurisprudence. The bail order stipulated that the petitioner must appear before the investigating officer every fortnight, furnish a bank guarantee of fifty thousand rupees, and disclose any change in residence, thereby ensuring continuous judicial oversight. Failure to comply with any of these conditions was expressly made a ground for immediate revocation of bail, reflecting the Court's intent to deter any misconduct while the trial proceeds. The petitioners' counsel also urged the Court to consider the principle of proportionality, emphasizing that prolonged deprivation of liberty without conviction contravenes the tenets of a fair criminal justice system. In response, the Court affirmed that the jurisprudential balance between individual rights and collective security mandates a case‑by‑case inquiry, rejecting any mechanistic application of Section 37 that disregards factual nuances. The Court interpreted the term 'likely' in sub‑clause (b)(ii) to demand a demonstrable and substantial probability of re‑offending, rejecting a speculative threshold that would otherwise erode the protective intent of bail jurisprudence. Given the petitioner's clean record, absence of any prior conviction, and lack of any indication that he might interfere with witnesses, the Court found the likelihood of such interference to be merely hypothetical. To ensure adherence, the Court ordered that the petitioner submit, within ten days of each month's commencement, an affidavit affirming his non‑involvement in any crime, accompanied by a verification of his current address and telephone details. Non‑compliance with the affidavit requirement would trigger an automatic review, empowering the investigating officer to seek immediate revocation of bail before the High Court. The order also mandated that the petitioner refrain from travelling abroad without prior permission, thereby preventing any possibility of evasion of the trial process. The State further contended that the quantity of tablets alleged possessed, if proved, would invoke the statutory presumption of guilt under Section 22‑C, thereby justifying denial of bail as a safeguard against potential flight risk. In rebuttal, the Court emphasized that the statutory presumption is not conclusive and must be corroborated by material evidence, which was lacking in the present case, thereby undermining the State's reliance on the presumption. Consequently, the Court held that the burden of establishing a prima facie case for denial of bail rested upon the prosecution, which it found unsatisfied given the paucity of admissible proof. The Court also reflected that bail is a constitutional right subject to reasonable restrictions, and that any restriction must be proportionate to the legitimate aim of preventing abuse of the judicial process. In affirming the bail, the Court thereby reinforced the principle that prolonged under‑trial detention without conviction constitutes a violation of personal liberty, necessitating judicial intervention to restore the balance between state authority and individual rights. The decision serves as a precedent for future bail applications under the NDPS Act, illustrating that courts must scrutinize the evidentiary foundation of accusations and apply Section 37 with a measured, case‑specific approach.

Issue: Whether a disclosure statement of a co‑accused, without corroborative evidence, can alone justify denial of regular bail under the NDPS Act.

Decision: DECIDED, the Court held that such a disclosure statement, in the absence of corroborative forensic or eyewitness proof, possesses limited evidentiary value and therefore cannot by itself constitute a ground sufficient to deny the grant of regular bail.

Quote: ["such disclosure statements, in the absence of corroborative evidence hold limited evidentiary value and cannot be sole basis for implicating the petitioner."]

Issue: Whether the rigour of Section 37 of the NDPS Act applies when the accused has suffered prolonged under‑trial detention and the trial delay is not attributable to him.

Decision: DECIDED, the Court concluded that the stringent provisions of Section 37 of the NDPS Act lose their oppressive effect when the accused has suffered an inordinate period of under‑trial custody and the delay in trial is attributable to the prosecution rather than the accused, thereby permitting the grant of bail.

Quote: ["The rigour(s) of Section 37 of NDPS Act pale into oblivion when bail is sought for on account of long incarceration in view of Article 21 of the Constitution of India i.e. where the bail‑applicant has suffered long under‑trial custody, the trial is procrastinating and folly thereof is not attributable to such bail‑applicant."]

Issue: Whether the conditions stipulated in Section 37(1)(b)(i) and (ii) – reasonable grounds of innocence and lack of likelihood of re‑offending – are satisfied to merit the grant of regular bail.

Decision: DECIDED, after weighing the scarcity of evidential linkage and the petitioner's personal circumstances, the Court found that reasonable grounds existed to believe in his innocence and that the probability of re‑offending was not demonstrably substantial, thereby fulfilling the statutory requisites of Section 37(1)(b)(i) and (ii) for the issuance of regular bail.

Quote: ["The word 'likely' ought to be interpreted as requiring a demonstrable and substantial probability of re‑offending by the bail‑applicant, rather than a mere theoretical one... In the facts of the given case, the conditions of Section 37(1)(b)(i) and (ii) are satisfied, warranting the grant of regular bail."]

Conclusion: The High Court ultimately granted regular bail to the petitioner, imposing conditions that he shall not tamper with evidence, abscond, or commit any offence. He must surrender his passport, provide his mobile number to the investigating officer, refrain from delaying the trial, and submit a monthly affidavit, with any breach subject to immediate cancellation of the bail.

Bail – Representation Before the High Court at Chandigarh – SimranLaw

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