NDPS undertrial bail and prolonged custody can override statutory restrictions under the governing release directions

In NDPS prosecutions involving a minimum sentence of ten years and a minimum fine of one lakh rupees, prolonged pre-trial custody is treated as a material factor in considering bail. The text notes that custody exceeding five years may trigger release under the governing undertrial-release directions, even where Section 37 bail restrictions apply, subject to prescribed conditions and safeguards. It also states that a disclosure statement under Section 67 of the NDPS Act is not admissible evidence under the governing law, which affects the evidentiary basis for continued detention. On that footing, bail was granted to the undertrial accused with conditions.

---

---

Issues: Whether regular bail was to be granted to an undertrial accused in an NDPS case in view of prolonged incarceration, the minimum sentence prescribed, and the statutory restrictions on bail.

Analysis: The applicant had remained in custody for more than seven years in a prosecution for offences carrying a minimum sentence of ten years and a minimum fine of one lakh rupees. The Court applied the directions governing undertrial release in serious NDPS matters and noted that the custody period had exceeded the threshold recognised for release on bail. It further noticed that the disclosure statement under Section 67 of the NDPS Act could not be treated as admissible evidence after the governing law on the point. The bail restrictions under Section 37 were considered in the background of the long pre-trial incarceration and the applicable directions for release of undertrials.

Conclusion: Bail was granted to the applicant, subject to conditions and safeguards imposed by the Court.

Ratio Decidendi: In an NDPS prosecution carrying a minimum sentence of ten years and a minimum fine of one lakh rupees, an undertrial who has remained in custody for more than five years is entitled to bail in terms of the governing undertrial-release directions, notwithstanding the statutory bail restrictions, subject to compliance with the prescribed conditions.

---