The Narcotic Drugs and Psychotropic Substances Act, 1985 erects the country’s toughest bail barrier in Section 37. But even that barrier is not absolute when the State cannot deliver a timely trial. A Rajasthan High Court order of 24 September 2026 adds to the consistent line of authority holding that prolonged incarceration as an undertrial, with the prosecution’s evidence far from complete, tilts the balance towards liberty under Article 21 of the Constitution.
The case
The petitioner was arrested in FIR No. 131/2020, Police Station Naal, District Bikaner, for offences under Sections 8 and 22 of the NDPS Act. By the time his bail application reached Justice Kuldeep Mathur at the Jodhpur Bench, he had spent approximately five years in custody as an undertrial. The trial had commenced years earlier, yet only seven of the fifteen prosecution witnesses stood examined.
The Court’s reasoning
The High Court granted bail, resting squarely on delay. In the Court’s words, the trial was proceeding at a “snail’s pace.” The relevant considerations lined up as follows:
Where this fits in NDPS bail law
| Situation | Bail approach |
|---|---|
| Small quantity | Section 37 rigours do not apply; ordinary bail principles govern |
| Intermediate quantity | Section 37 bar inapplicable; courts weigh gravity, antecedents and role |
| Commercial quantity, trial on schedule | Twin conditions of Section 37 apply with full force |
| Commercial quantity, prolonged custody and stalled trial | Constitutional speedy-trial principle can outweigh Section 37 — the territory of this case |
Under the new procedural code, the undertrial-release provision of Section 436A CrPC now appears as Section 479 BNSS, with modifications including stricter treatment of multi-case accused and a one-third threshold for first-time offenders. Delay-based bail in NDPS matters, however, typically proceeds on constitutional grounds rather than on the statutory half-sentence rule alone.
Practical significance
For defence practitioners, the order underlines the value of building a precise delay record: dates of framing of charge, witness attendance, adjournments attributable to the prosecution, and the proportion of evidence completed. Bald pleas of delay rarely move courts; a documented chronology often does. For the prosecution, the lesson is equally direct — NDPS cases must be tried with the urgency their strict bail regime presupposes, or that regime will yield.
Takeaways
Section 37 is a high wall, not an infinite one. Prolonged custody plus a stalled trial remains the most reliable route to bail in commercial-quantity cases. Compliance with conditions after release is essential: the grant expressly contemplates cancellation on any fresh involvement.
This article is for general information only and is not legal advice. Bail outcomes depend on the record of each case; parties should obtain advice on their own matter.
Frequently Asked Questions
Does Section 37 NDPS Act bar bail entirely?
For offences involving commercial quantity, Section 37 requires the court to be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to offend on bail. The Supreme Court has, however, repeatedly held that prolonged custody with no prospect of early trial can justify bail notwithstanding Section 37, because the right to a speedy trial is part of Article 21.
How long is “too long” in custody?
There is no fixed arithmetic. Courts look at the period undergone, the pace of the trial, the number of witnesses remaining, and the maximum sentence. Here, roughly five years’ custody against a trial that had covered less than half the witness list was decisive.
What conditions were imposed?
The accused was directed to furnish a personal bond of Rs. 2,00,000 with two sureties of Rs. 1,00,000 each and to appear regularly before the trial court. The order also preserved the prosecution’s liberty to seek cancellation of bail if the petitioner were involved in a similar offence.
Does bail mean the case is over?
No. Bail only regulates custody during trial. The NDPS trial continues, and absconding or fresh offences invite immediate cancellation.