Bail on “Long Custody”: When Does Delay in Trial overtakes Section 37?

An evidence-based analysis of when prolonged pre-trial detention and trial delay lead courts — especially Punjab & Haryana High Court — to grant bail despite Section 37’s statutory bar.

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Why Long Incarceration Matters in NDPS Cases

The NDPS Act’s Section 37 imposes strict bail restrictions in commercial-quantity cases. However, when pre-trial custody becomes prolonged, and there is no meaningful progress in trial — holding an accused indefinitely may amount to de facto punishment, contrary to the constitutional protection under Article 21.

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Statutory Framework vs Constitutional Safeguards

Section 37 — Dual Conditions for Bail

For commercial-quantity offences under the NDPS Act, bail may be granted only if the court is satisfied (i) that there are reasonable grounds to believe the accused is not guilty, and (ii) that the accused is not likely to commit an offence while on bail.

Article 21 & Judicial Tempering: The Supreme Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) (2023)

In this landmark judgment, the Supreme Court held that grant of bail on the ground of undue delay in trial “cannot be said to be fettered by Section 37 of the NDPS Act.” The Court recognized that prolonged pre-trial incarceration violates Article 21 where there is no reasonable prospect of trial conclusion in the near future.

🔗 Official judgment (PDF): Mohd. Muslim @ Hussain (2023) – Narcotics India

🔗 Summary/analysis: LiveLaw – Mohd. Muslim v. State (NCT of Delhi), 2023

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Punjab & Haryana High Court — Key Judicial Interventions

1. Bail Granted After ~3 Years Custody: PHHC Clarifies Section 37 Condition (July 2025)

PHHC granted bail to an accused under NDPS commercial-quantity charges, who had been in judicial custody under other FIRs for almost 3 years. The Court invoked Article 21 and held that the “not likely to commit offence” condition under Section 37 can be satisfied by imposing conditions, even where prosecution progress is negligible.

🔗 Reported order: LiveLaw – PHHC 2025 Bail Order

🔗 Commentary (Hindi): CourtBook – PHHC Bail Over Witness Absence (Jul 2025)

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2. Bail Granted to Accused in NDPS Case Where Trial Witnesses Failed to Appear (Dec 2022 PHHC Order)

In this case, the High Court expressed dismay at the persistent non-appearance of police-official witnesses despite repeated summons and arrest warrants, and granted bail — signaling that prosecution inertia cannot justify prolonged custody.

🔗 Reported order: LiveLaw – PHHC Grants Bail over Police Witness Non-Appearance (Dec 2022)

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3. Jaswinder Singh @ Kala v. State of Punjab — PHHC Recognises Constitutional Override (2025)

This PHHC bail order (FIR under NDPS Act, commercial quantity) was discussed in recent 2025 rulings. While the full online text was not accessible, the case is consistently referred to in live-reporting and legal commentary as an authority for applying Article 21 to temper Section 37 in long-custody cases.

🔗 Reported order: 24Law – PHHC Bail Order Jaswinder Singh @ Kala (2025)

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Patterns Emerging from PHHC + SC Jurisprudence

• Where accused remains in long custody (2–3 years or more) and trial progress is negligible, Article 21 may outweigh Section 37.
• Courts accept that the “not likely to commit offence” limb of Section 37 can be satisfied by stringent bail conditions (monthly affidavits, sureties, periodic reporting).
• Repeated prosecution defaults — e.g. non-appearance of witnesses, lack of witness examination for years — strengthen the case for bail.

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Practical Checklist for Bail Petitions Based on Long Incarceration / Delay

• Compute total duration of pre-trial custody in days/months — highlight if >2 years.
• Prepare a trial-progress chart: number of hearings, number of witnesses examined vs listed, adjournment history, reasons for delay (with emphasis on prosecution/non-availability of witnesses).
• Affidavit by accused stating non-involvement with further offences, clean antecedents, family-ties / sureties.
• Invoke constitutional protections under Article 21, relying on Mohd. Muslim @ Hussain (SC) and PHHC precedents above.
• Propose strict bail conditions (monthly affidavits, sureties, reporting, passport-surrender, prohibition on tampering with evidence) to allay risk of re-offence.

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Conclusion

Recent Supreme Court and Punjab & Haryana High Court jurisprudence demonstrates that while Section 37 of the NDPS Act erects a high statutory hurdle, it is not inviolable. Where pre-trial detention becomes lengthy, trial progress remains stalled, and the prosecution is responsible for the delay — constitutional guarantees under Article 21 demand release on bail. Courts have shown readiness to temper the statutory bar with proportionality and fairness.