Commercial quantity, two years in jail — the High Court still said bail is the rule.

Two years in jail, two witnesses examined: the High Court’s message on NDPS bail

When Bhupesh Kumar @ Happy was arrested on 9 July 2022 near Patiala, the police claimed he was carrying a bag full of Tramadol Hydrochloride capsules and tablets — a commercial quantity under the NDPS Act. He was charged under Section 22 of the NDPS Act. The stakes were high: a conviction could mean a minimum ten-year sentence. But by the time his bail application reached the High Court of Punjab and Haryana at Chandigarh, Bhupesh had spent over two years in custody. Only two of the nine prosecution witnesses had been examined. The trial was crawling. And the police story had a hole — a private vehicle whose details were never recorded.

Justice Sandeep Moudgil granted bail. The judgment, dated 23 July 2024, is a crisp reminder that even under the stringent Section 37 NDPS Act, prolonged incarceration and a slow trial can tilt the scales back toward liberty.

The arrest that raised questions

According to the FIR registered at Police Station Tripri Patiala, District Patiala, a police party was travelling in a private vehicle when they spotted Bhupesh. On seeing them, he allegedly threw a bag containing the contraband. The police recovered the bag and arrested him on the spot.

But here’s the detail that caught the Court’s attention: the private vehicle’s registration number or any identifying details were never recorded in the police zimni or the case file. The State did not controvert this fact. “This is a grave irregularity,” the Court observed, “which raises a probability of false implication.”

The prosecution’s case rested on a chance recovery from a vehicle that might as well have been invisible. For a Bench examining a bail application, that was enough to cast reasonable doubt on the story.

The procedural journey: two years, two witnesses

The procedural timeline tells its own story. The FIR was registered on 9 July 2022. The challan was filed on 8 December 2022. Charges were framed on 13 February 2023. By the time the bail application was heard in July 2024 — over two years after arrest — only two of the nine prosecution witnesses had been examined. The remaining seven were still waiting to be called.

Bhupesh had been in custody for 2 years and 11 days. He was not a habitual offender. There was no other criminal case against him. The trial was moving at a pace that could only be described as glacial.

What each side argued

The petitioner’s counsel, appearing before the High Court, made two principal arguments. First, the prolonged incarceration — over two years with no end in sight — violated Bhupesh’s right to a speedy trial under Article 21 of the Constitution. Second, the police’s use of an unrecorded private vehicle was a serious irregularity that undermined the prosecution’s case.

The State opposed bail, pointing to the rigours of Section 37 of the NDPS Act. Under that provision, bail cannot be granted in cases involving commercial quantities unless the court is satisfied that there are reasonable grounds to believe the accused is not guilty and that he is not likely to commit any offence while on bail. The State argued that the recovery of a commercial quantity of Tramadol Hydrochloride triggered this bar.

The doctrine that mattered: Article 21 and the right to speedy trial

Justice Moudgil did not ignore Section 37. But he weighed it against a more fundamental right: the right to life and personal liberty under Article 21, which includes the right to a speedy trial.

The Court relied on three precedents. First, Dataram Singh v. State of Uttar Pradesh and another (2018) 3 SCC 22, which laid down the principle that “bail is a rule, jail is an exception” — a principle that must be adhered to when the trial is moving slowly. Second, Hussainara Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98, which held that the right to a speedy trial is part of the reasonable, fair and just procedure guaranteed under Article 21 and cannot be denied to the accused. Third, Abdul Rehman Antulay and others v. R.S. Nayak and another 1992(2) RCR (Criminal) 634, which clarified that the right to a speedy trial encompasses all stages — investigation, inquiry, trial, appeal, revision and retrial — and that remand and pre-conviction detention should be as short as possible.

The Court observed that Bhupesh had been in custody for over two years, the trial was proceeding slowly, and the majority of witnesses remained unexamined. In such circumstances, the right to life and liberty under Article 21 mandated the grant of bail, even in a case involving a commercial quantity under the NDPS Act.

THE PLAY: Where an NDPS accused has been incarcerated for over two years, is not a habitual offender, the trial is moving slowly with most witnesses unexamined, and there are doubts about the prosecution story (such as an unrecorded private vehicle used by the police), the right to a speedy trial under Article 21 can override the rigours of Section 37 NDPS Act. File a bail application citing Dataram Singh, Hussainara Khatoon, and Abdul Rehman Antulay.

Why this matters in practice

For advocates practising in NDPS cases, this judgment is a useful tool. It demonstrates that the High Court is willing to look beyond the mechanical application of Section 37 and examine the realities of the case — the length of incarceration, the pace of the trial, and the credibility of the prosecution’s narrative.

For CFOs and founders who may find themselves or their employees caught in NDPS cases (often through alleged possession of psychotropic substances like Tramadol), the takeaway is clear: prolonged pre-conviction detention is not inevitable. The courts are alive to the constitutional right to a speedy trial, and they will intervene when the State’s case is weak and the trial is slow.

The judgment also carries an obiter that could have systemic implications. Justice Moudgil extensively reproduced the principles from Hussainara Khatoon and Abdul Rehman Antulay about the High Courts’ responsibility to monitor undertrial prisoners and ensure that guidelines are implemented in letter and spirit. This could be cited in future cases to argue for a systemic review of undertrial prisoners in NDPS cases across Punjab and Haryana.

The bottom line

Bhupesh Kumar @ Happy walked out of jail on bail because the High Court held that two years in custody with only two witnesses examined and a police story that didn’t add up was too high a price to pay before trial. The message is simple: even under the NDPS Act, bail is the rule, jail is the exception — and the right to a speedy trial is not negotiable.