If trials remain pending for years because of systemic inadequacies, repeated adjournments, non-production of witnesses or institutional delays not attributable to the accused, continued incarceration “ceases to be preventive and assumes a punitive character”, the Punjab and Haryana High Court has ruled.The assertion came as the high court granted regular bail to two men – booked under the Narcotic Drugs and Psychotropic Substances (NDPS) Act in a case allegedly involving commercial quantity of heroin – after remaining behind bars for almost two years.Referring to the legal position emerging from the Supreme Court authorities, Justice Virinder Aggarwal observed that offences under the NDPS Act were “undoubtedly grave” and the statutory conditions governing bail were stringent, but “the constitutional guarantee of a speedy trial under Article 21 remains paramount”.The Bench added that courts were required “to balance the societal interest in effective prosecution with the individual’s fundamental right to personal liberty”.Justice Aggarwal further ruled that “prolonged incarceration of an undertrial without meaningful progress in the trial cannot be justified merely by invoking the rigours of Section 37 of the NDPS Act”. The provision makes it clear that the severity or strictness in granting bail is applicable to offences involving commercial quantity.It indicates that no person accused of an offence punishable under this law “shall be released on bail or on his own bond unless— the public prosecutor has been given an opportunity to oppose the application for such release and where the public prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”Justice Aggarwal added: “In such exceptional circumstances, Constitutional Courts are duty-bound to harmonise the statutory restrictions with the fundamental right to personal liberty and ensure that pre-trial detention does not degenerate into punishment before adjudication of guilt.”The court further held that “where delay is inordinate and not attributable to the accused, Constitutional Courts are empowered to grant appropriate relief so as to prevent violation of Article 21”.The matter was placed before Justice Aggarwal’s Bench after the petitioners sought regular bail in FIR registered on May 7, 2024, under the provisions of the Narcotic Drugs and Psychotropic Substances Act, at Behrampur police station in Gurdaspur district.Explaining why the statutory restrictions on bail could not be viewed in isolation, Justice Aggarwal observed that the NDPS Act itself reflected the legislative intent that prosecutions under the statute should proceed expeditiously. Referring to Section 36, the court noted that it empowered the Government to constitute Special Courts “for the very purpose of ensuring speedy trial of NDPS offences”.Consequently, “the statutory scheme itself proceeds on the assumption that greater restrictions on bail are constitutionally sustainable only when accompanied by equally expeditious adjudication”.“Where the State fails to provide the infrastructure necessary for speedy disposal, continued reliance upon Section 37 alone would produce an unconstitutional imbalance between individual liberty and societal interest. Delay defeats that legislative premise,” Justice Aggarwal asserted.Turning to the facts of the case, the court noted that both petitioners had remained in judicial custody for almost two years. It further recorded that the investigation stood concluded, the challan had already been presented before the trial court and the petitioners were “no longer required for any further custodial interrogation”.Justice Aggarwal also noticed that charges had already been framed and 13 prosecution witnesses had been cited, but only one witness had been examined till date.“The trial is, therefore, likely to take considerable time to reach its logical conclusion. In these circumstances, keeping the petitioners incarcerated for an indefinite period would not serve any useful purpose,” the Bench observed before allowing the petitions and granting regular bail subject to detailed conditions, including restrictions on influencing witnesses, leaving India without permission, disclosure of residential addresses, PAN, Aadhaar, bank accounts and immovable properties, besides requiring the petitioners to remain present before the trial court and refrain from committing any similar offence during the pendency of the trial.