Prolonged incarceration and trial delay can justify bail in commercial quantity NDPS cases despite Section 37's strict bar.

In a commercial quantity NDPS matter, the Delhi High Court held that Section 37's rigour did not bar regular bail where custody had become prolonged, the trial was progressing slowly, and early completion of evidence was unlikely. It reasoned that Article 21 and conditional liberty may justify release in appropriate cases despite the statutory embargo. The Court also noted the absence of independent witnesses, lack of videography or CCTV material, and delayed compliance with Section 52A and sample forwarding, and treated these lapses cumulatively with long incarceration and trial delay as supporting a prima facie case for bail. Regular bail was granted on conditions.

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Issues: (i) Whether the applicants were entitled to regular bail in a commercial quantity NDPS case despite the rigour of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. (ii) Whether the absence of independent witnesses, lack of videography and CCTV evidence, and delay in compliance with Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 and in the trial justified grant of bail.

Issue (i): Whether the applicants were entitled to regular bail in a commercial quantity NDPS case despite the rigour of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Analysis: The accusation involved recovery of commercial quantity, so the statutory embargo under Section 37 applied. Bail could be granted only if the Court was satisfied that there were reasonable grounds for believing that the accused was not guilty and was not likely to commit any offence while on bail. The Court held that prolonged custody, the stage of the trial, and the absence of any likelihood of early conclusion of evidence were material considerations. It further held that undue delay in trial can justify bail even in NDPS matters, because conditional liberty and the protection of personal liberty under Article 21 may override the statutory restriction in appropriate cases.

Conclusion: The applicants were held entitled to bail notwithstanding Section 37.

Issue (ii): Whether the absence of independent witnesses, lack of videography and CCTV evidence, and delay in compliance with Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 and in the trial justified grant of bail.

Analysis: The Court noted that the search and recovery were said to have taken place at a public place, yet no independent witness was associated, no notice under Section 100(8) of the Code of Criminal Procedure, 1973 was issued on refusal, and no CCTV or videographic material was produced. It also noticed belated compliance with Section 52A and delay in sending samples to the laboratory. Relying on the view that belated procedural compliance is not by itself a ground for bail, the Court nevertheless held that the cumulative effect of these lapses, together with the long incarceration and slow progress of the trial, made out a prima facie case for bail at this stage.

Conclusion: The procedural lapses, coupled with prolonged incarceration and delay in trial, justified grant of bail.

Final Conclusion: Regular bail was granted to both applicants on conditions, as the Court found that the statutory restrictions under the NDPS Act did not bar relief in the facts of the case where custody had become prolonged and the trial was not likely to conclude soon.

Ratio Decidendi: In an NDPS case involving commercial quantity, prolonged incarceration and undue delay in trial may justify bail despite Section 37, and the Court may also take into account the absence of independent witnesses and supporting electronic evidence while assessing whether the accused has made out a prima facie case for release.

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