2025:BHC-AS:5090

1. BA-1308-2024.docx

Amberkar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO. 1308 OF 2024

Mohammad Ahmed Shamshuddin Shaikh Applicant

.. (Accused No. 2)
Versus
Union of India & Anr. .. Respondents
....................
 Ms. Munira Palanpurwala a/w Ms. Sumaiya Khan, Ms. Kaynat
Sayyed & Ms. Deepa Amati for Applicant
 Ms. Aruna Pai for Respondent No. 1 - Union of India
 Ms. Mahalakhshmi Ganapathy, APP for Respondent No. 2 - State
...................
CORAM : MILIND N. JADHAV, J.
DATE : FEBRUARY 03, 2025
P. C.:

1. Heard Ms. Palanpurwala, learned Advocate for Applicant; Ms.

Pai, learned Advocate for Respondent No. 1 - Union of India and Ms.

Ganapathy, learned APP for Respondent No. 2 - State.

2. Applicant - accused No. 2 has filed the present Application for

regular bail in NDPS Spl. Case No. 128/2022 in CR No. 71/2021

registered with NCB for the offences punishable under Section 8(c)

r/w 20(b)(ii)(c), 22(b), 27, 27-A, 28, 29 and 30 of the Narcotic Drugs

And Psychotropic Substances Act, 1985 (for short, "NDPS Act").

3. Applicant is arraigned as accused No. 2 for being apprehended

with 1.2 Kgs. of Charas i.e. alleged contraband. Case of the

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prosecution is that it is commercial quantity and therefore rigours of

Section 37 of the NDPS Act would apply in the present case.

4. Learned APP would persuade me to consider the statements of

co-accused who have been granted bail wherein it has been recorded

by this Court as also by the Sessions Court which while granting bail

has noted that the alleged contraband was recovered from the

Applicant before me. However the memorandum panchnama

conducted by the officers of the NCB on the intervening night of

24.07.2021 and 25.07.2021 when the raid took place itself states that

the raid was conducted at the house in which the alleged contraband

was seized belonged to accused No. 1 - Sameer Mukhtar Sayyed. Said

memorandum panchnama narrates the say of Intelligence Officer who

conducted the raid and it states that when he entered the said house,

accused No. 1 admitted to him that he was having more than 1.2 Kgs.

Charas and on asking further, the said alleged contraband was brought

out by the present Applicant and voluntarily handed over to the

Investigating Officer (IO). Prima facie, it is seen that there was

specific information received by the Intelligence Bureau that accused

No. 2 i.e. Applicant before me would be coming over to handover the

alleged contraband to accused No. 1 at the given address. It is seen

that when accused No. 2 was not seen to arrive at the said place, NCB

officials themselves knocked the door of the house / flat and found the

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persons i.e. accused Nos. 1, 2 and 3 inside. At that time accused No. 3

attempted to jump out of the window and run away but while doing

so, he injured his leg and was apprehended with intermediate quantity

of the alleged contraband. In so far as the said house is concerned,

admittedly it belonged to accused No. 1. Though the rigours of

Section 37 would apply in the present case but despite having specific

information it is not the case of prosecution that Applicant i.e. accused

No. 2 arrived at the incident spot to deliver the alleged contraband. In

that view of the matter and taking into account the rigours of Section

42 of the NDPS Act qua the place from which the alleged contraband

was recovered would have to be considered and in that view of the

matter, since the said place admittedly belonged to accused No. 1, the

indictment of Applicant - accused No. 2 would therefore be a suspect.

Be that as it may, the trial would otherwise determine the complicity of

the persons involved in the crime. Today before me is the Bail

Application filed by Applicant No. 2 who has been incarcerated since

long since 25.07.2021. Applicant has no antecedents whatsoever.

5. It is settled law that a Court while deciding a Bail Application

has to keep in mind the principal rule of bail which is to ascertain

whether the Accused is likely to appear before the court for trial.

There are other broad parameters also like gravity of offence,

likelihood of Accused repeating the offence while on bail, whether he

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would influence the witnesses and tamper with the evidence, his

antecedents which are required to be considered in such cases.

However the metrics of judicial decision making gets amplified or

rather shuttled to another facet when dealing with offences where

Section 37 of NDPS Act is attracted. In such cases one has to satisfy

itself with the rigors of the twin conditions as prescribed under Section

37 of the NDPS Act. Section 37 reads thus:-

“37. Offences to be cognizable and non-bailable.:- (1)

Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for offences

under section 19 or section 24 or section 27-A and also for
offences involving commercial quantity shall be released on bail
or on his own bond unless:-

(i) the Public Prosecutor has been given an opportunity to

oppose the application for such release, and

(ii) 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.

(2) The limitations on granting of bail specified in clause (b) of

sub-section (1) are in addition to the limitations under the Code
of Criminal Procedure, 1973 (2 of 1974) or any other law for
the time being in force on granting of bail.”

6. From the reading of Section 37 of the NDPS Act, it

becomes clear that the legislature intends to deny bail to accused

alleged to be in possession of commercial quantity of contraband in

absence of court subscribing to a contrary view, however therefore if

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seen it does not rule out the facet of discretion of Court to grant bail.

Furthermore the Court must be satisfied that the accused is unlikely to

re-offend. It is seen that while dealing with Bail Applications the

material available for consideration and adjudication is limited. In

such cases, if we look realistically the provisions of Section 37 leave

limited room for a possibility of granting bail to the accused. However

employing such limitation would create a dichotomy in the current

scenario where one common grievance is made before this Court

repeatedly in matter after matter. It is brought to the notice of the

Court that trials are taking perpetuity to be concluded and prisons are

also simultaneously overcrowded in some segments. This Court

regularly deals with Bail Applications of under-trials who have been in

custody for long incarceration, and is also equally aware of the

conditions of our prisons. To give an example in the city of Mumbai,

recently in one of the cases before me, a Report dated 12.12.2024

made by the Superintendent of Mumbai Central Prison addressed to

the Chief Government Pleader was placed before me by the Public

Prosecutor which stated that the Mumbai Central Prison (Arthur Road

Jail) is overcrowded beyond its sanctioned capacity by more than 5 – 6

times and every barrack sanctioned to house 50 inmates, as on date

houses anywhere between 220 – 250 inmates. This situation is

inhumane, but it also cannot be forgotten that addiction of drugs is

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also a serious issue qua the society at large, and therefore provisions

such as Section 37 act as a deterrent to prospective wrongdoers. Such

an incongruity leads us to answer the proposition: “How can Courts

find a balance between the two polarities?"

7. Argued before me is a case concerning liberty of an

under-trial who has been incarcerated for 3 years 6 months and 10

days, a situation impacting the rights of undertrial conferred by Article

21 of Constitution to speedy justice as also personal liberty. In so far as

the power of high courts to grant bail is concerned, when the case is

such that involves a question of personal liberty of an undertrial who

is incarcerated for a very long period, the powers are wide and

unfettered by conditions, the principle rule being that bail is the rule

and refusal is the exception, allowing accused persons to better

prepare their defense.

8. In the case of Emperor vs H.L. Hutchinson1 the Allahabad

High Court, as far back as in the year 1931 held that power of granting

bail conferred on High Court is entirely unfettered by any conditions.

It held that legislature has given the High Court and the Court of

Session discretion unfettered by any limitation other than that which

controls all discretionary powers vested in a Judge, viz. that the

discretion must be exercised judiciously. The Court has given primacy

1
AIR 1931 ALL 356

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to the fact that accused person if granted bail will be in a much better

position to defend himself. In this very case, it was delineated that

grant of Bail is the Rule and refusal is an exception. This was in the

famous Meerut Conspiracy case. Justice Mukherjea writing for the

Bench in paragraph No.9 held as under:-

“9. Speaking for myself, I think it very unwise to make an

attempt to lay down any particular rules for the guidance of the
High Court, having regard to the fact that the legislature itself
left the discretion of the Court entirely unfettered. The reason
for this action on the part of the legislature is not far to seek.
The High Court might be safely trusted in this matter and it goes
without saying that it would act in the best interests of justice
whether it decides in favour of the prosecution or the defence.
The variety of cases that may arise from time to time cannot be
safely classified and it will be dangerous to make an attempt to
classify the cases and to say that in particular classes a bail may
be granted but not in other classes.”

9. In the case of Satender Kumar Antil Vs. Central Bureau of

Investigation2, in paragraph Nos.6 to 15 the Supreme Court

considered the prevailing situation of prisons in India, definition

of trial and bail, principle of presumption of innocence and

reiterated the well recognised principle that bail is the rule and

jail is the exception in bail jurisprudence on the touchstone of

Article 21 of the Constitution of India. Paragraph Nos.6 to 15 of

the said judgement read as under:-

“Prevailing situation
6. Jails in India are flooded with undertrial prisoners. The
statistics placed before us would indicate that more than 2/3rd
of the inmates of the prisons constitute undertrial prisoners. Of
2
(2022) 10 SCC 51

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this category of prisoners, majority may not even be required to

be arrested despite registration of a cognizable offence, being
charged with offences punishable for seven years or less. They
are not only poor and illiterate but also would include women.
Thus, there is a culture of offence being inherited by many of
them. As observed by this Court, it certainly exhibits the
mindset, a vestige of colonial India, on the part of the
investigating agency, notwithstanding the fact arrest is a
draconian measure resulting in curtailment of liberty, and thus
to be used sparingly. In a democracy, there can never be an
impression that it is a police State as both are conceptually
opposite to each other.
Definition of trial
7. The word “trial” is not explained and defined under the
Code. An extended meaning has to be given to this word for the
purpose of enlargement on bail to include, the stage of
investigation and thereafter. Primary considerations would
obviously be different between these two stages. In the former
stage, an arrest followed by a police custody may be warranted
for a thorough investigation, while in the latter what matters
substantially is the proceedings before the court in the form of a
trial. If we keep the above distinction in mind, the consequence
to be drawn is for a more favourable consideration towards
enlargement when investigation is completed, of course, among
other factors.
8. Similarly, an appeal or revision shall also be
construed as a facet of trial when it comes to the consideration
of bail on suspension of sentence.
Definition of bail
9. The term “bail” has not been defined in the Code, though is
used very often. A bail is nothing but a surety inclusive of a
personal bond from the accused. It means the release of an
accused person either by the orders of the court or by the police
or by the investigating agency.
10. It is a set of pre-trial restrictions imposed on a suspect
while enabling any interference in the judicial process. Thus, it
is a conditional release on the solemn undertaking by the
suspect that he would cooperate both with the investigation and
the trial. The word “bail” has been defined in Black's Law
Dictionary, 9th Edn., p. 160 as:
“A security such as cash or a bond; esp., security required
by a court for the release of a prisoner who must appear in
court at a future time.”
11. Wharton's Law Lexicon, 14th Edn., p. 105 defines
“bail” as:

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“to set at liberty a person arrested or imprisoned, on

security being taken for his appearance on a day and at a
place certain, which security is called bail, because the
party arrested or imprisoned is delivered into the hands of
those who bind themselves or become bail for his due
appearance when required, in order that he may be safely
protected from prison, to which they have, if they fear his
escape, etc. the legal power to deliver him.”
Bail is the rule
12. The principle that bail is the rule and jail is the
exception has been well recognised through the repetitive
pronouncements of this Court. This again is on the touchstone of
Article 21 of the Constitution of India. This Court in Nikesh
Tarachand Shah v. Union of India [Nikesh Tarachand Shah v.
Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] ,
held that : (SCC pp. 22-23 & 27, paras 19 & 24)
“19. In Gurbaksh Singh Sibbia v. State of Punjab
[Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 : 1980 SCC (Cri) 465] , the purpose of granting bail is
set out with great felicity as follows : (SCC pp. 586-88,
paras 27-30)
‘27. It is not necessary to refer to decisions which
deal with the right to ordinary bail because that
right does not furnish an exact parallel to the right
to anticipatory bail. It is, however, interesting that as
long back as in 1924 it was held by the High Court
of Calcutta in Nagendra Nath Chakravarti, In re
[Nagendra Nath Chakravarti, In re, 1923 SCC
OnLine Cal 318 : AIR 1924 Cal 476] , AIR pp. 479-
80 that the object of bail is to secure the attendance
of the accused at the trial, that the proper test to be
applied in the solution of the question whether bail
should be granted or refused is whether it is
probable that the party will appear to take his trial
and that it is indisputable that bail is not to be
withheld as a punishment. In two other cases which,
significantly, are the “Meerut Conspiracy cases”
observations are to be found regarding the right to
bail which deserve a special mention. In K.N.
Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931
SCC OnLine All 60 : AIR 1931 All 504] it was
observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code,
that it conferred upon the Sessions Judge or the
High Court wide powers to grant bail which were
not handicapped by the restrictions in the preceding
Section 497 which corresponds to the present
Section 437. It was observed by the court that there
was no hard-and-fast rule and no inflexible principle

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governing the exercise of the discretion conferred by

Section 498 and that the only principle which was
established was that the discretion should be
exercised judiciously. In Emperor v. H.L. Hutchinson
[Emperor v. H.L. Hutchinson, 1931 SCC OnLine All
14 : AIR 1931 All 356] , AIR p. 358 it was said that
it was very unwise to make an attempt to lay down
any particular rules which will bind the High Court,
having regard to the fact that the legislature itself
left the discretion of the court unfettered. According
to the High Court, the variety of cases that may arise
from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases
and to say that in particular classes a bail may be
granted but not in other classes. It was observed that
the principle to be deduced from the various sections
in the Criminal Procedure Code was that grant of
bail is the rule and refusal is the exception. An
accused person who enjoys freedom is in a much
better position to look after his case and to properly
defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled
to freedom and every opportunity to look after his
own case. A presumably innocent person must have
his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by
Krishna Iyer, J., in Gudikanti Narasimhulu v. Public
Prosecutor [Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115]
that : (SCC p. 242, para 1)
“1. … the issue [of bail] is one of liberty,
justice, public safety and burden of the public
treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially
sensitised judicial process. … After all, personal
liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of
“procedure established by law”. The last four
words of Article 21 are the life of that human
right.”
29. In Gurcharan Singh v. State (Delhi Admn.)
[Gurcharan Singh v. State (Delhi Admn.), (1978) 1
SCC 118 : 1978 SCC (Cri) 41] it was observed by
Goswami, J., who spoke for the Court, that : (SCC p.
129, para 29)
“29. … There cannot be an inexorable formula
in the matter of granting bail. The facts and
circumstances of each case will govern the

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exercise of judicial discretion in granting or

cancelling bail.”
30. In American Jurisprudence (2nd Edn., Vol. 8,
p. 806, para 39), it is stated:
“Where the granting of bail lies within the
discretion of the court, the granting or denial
is regulated, to a large extent, by the facts and
circumstances of each particular case. Since
the object of the detention or imprisonment of
the accused is to secure his appearance and
submission to the jurisdiction and the
judgment of the court, the primary inquiry is
whether a recognizance or bond would effect
that end.”
It is thus clear that the question whether to
grant bail or not depends for its answer upon a
variety of circumstances, the cumulative effect
of which must enter into the judicial verdict.
Any one single circumstance cannot be treated
as of universal validity or as necessarily
justifying the grant or refusal of bail.’
* * *
24. Article 21 is the Ark of the Covenant so far as the
Fundamental Rights Chapter of the Constitution is
concerned. It deals with nothing less sacrosanct than the
rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental
Rights Chapter (along with Article 20) that cannot be
suspended even in an emergency [see Article 359(1) of the
Constitution]. At present, Article 21 is the repository of a
vast number of substantive and procedural rights post
Maneka Gandhi v. Union of India [Maneka Gandhi v. Union
of India, (1978) 1 SCC 248] .”
13. Further this Court in Sanjay Chandra v. CBI [Sanjay
Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 :
(2012) 2 SCC (L&S) 397] , has observed that : (SCC p. 52, paras
21-23)
“21. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure
the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it is required to ensure
that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that

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every man is deemed to be innocent until duly tried and

duly found guilty.
22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could be a
cause of great hardship. From time to time, necessity
demands that some unconvicted persons should be held in
custody pending trial to secure their attendance at the trial
but in such cases, “necessity” is the operative test. In this
country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty upon
only the belief that he will tamper with the witnesses if left
at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the
object of refusal of bail, one must not lose sight of the fact
that any imprisonment before conviction has a substantial
punitive content and it would be improper for any court to
refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to
refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.”
Presumption of innocence
14. Innocence of a person accused of an offence is
presumed through a legal fiction, placing the onus on the
prosecution to prove the guilt before the court. Thus, it is for
that agency to satisfy the court that the arrest made was
warranted and enlargement on bail is to be denied.
15. Presumption of innocence has been acknowledged
throughout the world. Article 14(2) of the International
Covenant on Civil and Political Rights, 1966 and Article 11 of
the Universal Declaration of Human Rights, 1948 acknowledge
the presumption of innocence, as a cardinal principle of law,
until the individual is proven guilty.”

10. The Supreme Court in a landmark decision of 1978 in the

case of Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High

Court of Andhra Pradesh3 observed as under:-

6. Let us have a glance at the pros and cons and the true
principle around which other relevant factors must revolve.

3
1978 (1) SCC 240

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When the case is finally disposed of and a person is sentenced to

incarceration, things stand on a different footing. We are
concerned with the penultimate stage and the principal rule to
guide release on bail should be to secure the presence of the
applicant who seeks to be liberated, to take judgment and serve
sentence in the event of the court punishing him with
imprisonment. In this perspective…” (emphasis supplied)

11. Thereafter the Supreme Court in a plethora of judgements

have discussed the rights conferred by Article 21 qua grant of bail and

that such rights cannot be taken away unless the procedure is

reasonable and fair and in cases where there is unreasonable delay in

trial it would undoubtedly impact the rights of an undertrial. Some of

the important decissions of the Supreme Court and some of the High

Courts are discussed hereinunder:-

11.1. In the landmark judgment of Maneka Gandhi V. Union of

India4, Supreme Court held that the right to life and personal liberty

under Article 21 is not limited to mere animal existence but includes

the right to live with dignity. The court emphasized that the procedure

established by law must be fair, just, and reasonable, and it cannot be

arbitrary, oppressive, or unreasonable.

11.2. In the case of Hussainara Khatoon Vs. Home Secy., State

of Bihar5 the Supreme Court held as under:-

Now obviously procedure prescribed by law for depriving a

person of liberty cannot “reasonable, fair or just” unless that
procedure ensures a speedy trial for determination of the guilt of
4
1978 (1) SCC 248
5
(1980) 1 SCC 81

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such person. No procedure which does not ensure a reasonably

quick trial can be regarded as “reasonable, fair or just” and it
would fall foul of Article 21. There can, therefore, be no doubt
that speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21. The
question which would, however, arise is as to what would be the
consequence if a person accused of an offence is denied speedy
trial and is sought to be deprived of his liberty by imprisonment
as a result of a long delayed trial in violation of his fundamental
right under Article 21.”

11.3. The Supreme Court in the case of Shaheen Welfare

Association vs Union Of India6 dealing with a Public Interest Litigation

seeking relief for undertrial prisoners charged under the Terrorist and

Disruptive Activities (Prevention) Act, 1987 due to gross delay in

disposal of cases qua Article 21 of the Constitution of India held as

under:-

10. Bearing in mind the nature of the crime and the need to
protect the society and the nation, TADA has prescribed in
Section 20(8) stringent provisions for granting bail. Such
stringent provisions can be justified looking to the nature of the
crime, as was held in Kartar Singh’s case (supra), on the
presumption that the trial of the accused will take place without
undue delay. No one can justify gross delay in disposal of cases
when undertrials perforce remain in jail, giving rise to possible
situations that may justify invocation of Article 21.”

11.4. The Supreme Court in the case of Union of India v. K. A.

Najeeb7 while commenting upon the possibility of early completion of

trial and extended incarceration held as under:-

11.5.“12. Even in the case of special legislations like the

Terrorist and Disruptive Activities (Prevention) Act, 1987 or the
Narcotic Drugs and Psychotropic Substances Act, 1985 (“the
NDPS Act”) which too have somewhat rigorous conditions for
6
1996 SCC (2) 616
7
Criminal Appeal No. 98 of 2021

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grant of bail, this Court in Paramjit Singh v. State (NCT of

Delhi), Babba v. State of Maharashtra and Umarmia v. State of
Gujarat enlarged the accused on bail when they had been in jail
for an extended period of time with little possibility of early
completion of trial. The constitutionality of harsh conditions for
bail in such special enactments, has thus been primarily justified
on the touchstone of speedy trials to ensure the protection of
innocent civilians.”

12. Applicant in present case has been in custody for almost 3

years 6 months and 10 days. There is no possibility of the trial

commencing in near future. Detaining an under-trial prisoner for such

an extended period further violates his fundamental right to speedy

trial flowing from Article 21 of the Constitution. At this juncture I

deem it appropriate to list certain observations of the Supreme Court

shedding light on concerns underlying the “Right to speedy trial” from

the point of view of an accused in custody whose liberty is affected. In

the case of Abdul Rehman Antulay & Ors. Vs R.S. Nayak & Anr. 8 the

Supreme Court held as under:-

“86. In view of the above discussion, the following propositions

emerge, meant to serve as guidelines. We must forewarn that
these propositions are not exhaustive. It is difficult to foresee all
situations. Nor is it possible to lay down any hard and fast rules.
These propositions are:
1) Fair, just and reasonable procedure implicit in Article 21 of
the Constitution creates a right in the accused to be tried
speedily. Right to speedy trial is the right of the accused. The
fact that a speedy trial is also in public interest or that it serves
the societal interest also, does not make it any-the-less the right
of the accused. It is in the interest of all concerned that the guilt
or innocence of the accused is determined as quickly as possible
in the circumstances.
2) Right to Speedy Trial flowing from Article 21 encompasses all
the stages, namely the stage of investigation, inquiry, trial,
appeal, revision and retrial. That is how, this Court has

8
1992 (1) SCC 225

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understood this right and there is no reason to take a restricted

view.
(3) The concerns underlying the Right to speedy trial from the
point of view of the accused are:
(a) the period of remand and pre-conviction detention should be
as short as possible. In other words, the accused should not be
subjected to unnecessary or unduly long incarceration prior to
his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation
and peace, resulting from an unduly prolonged investigation,
inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of
the accused to defend himself, whether on account of death,
disappearance or non-availability of witnesses or otherwise.”
(4) – (11) -------x------- (emphasis supplied)

13. The Supreme Court has also held in a series of judgments

and orders that in situations where the under-trial prisoner / accused

persons have suffered incarceration rather long incarceration for

considerable period of time and there is no possibility of the trial being

completed within the foreseeable future, Constitutional Courts can

exercise power to release the accused under-trial on bail, as bail is the

rule and jail is the exception.

14. In the case of Supreme Court Legal Aid Committee

(Representing undertrial prisoners) Vs. Union of India 9 the Supreme

Court has held that:-

17.We are conscious of the fact that the menace of drug

trafficking has to be controlled by providing stringent
punishments and those who indulge in such nefarious activities
do not deserve any sympathy. But at the same time we cannot be
oblivious to the fact that many innocent persons may also be
languishing in jails if we recall to mind the percentage of

9
(1995) 4 SCC 695

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acquittals. Since harsh punishments have been provided for

under the Act, the percentage of disposals on plea of guilt is
bound to be small; the State Government should, therefore,
have realised the need for setting up sufficient number of
Special Courts immediately after the amendment of the Act by
Amendment Act 2 of 1989. Even after the Division Bench of the
Bombay High Court refused to grant en bloc enlargement on
bail on 1-2-1993 in Criminal Application No. 3480 of 1992 and
B.D. Criminal No. 565 of 1992, no substantial improvement in
the pendency is shown since new cases continue to pour in, and,
therefore, a one-time exercise has become imperative to place
the system on an even keel. We also recommend to the State
Government to set up Review Committees headed by a Judicial
Officer, preferably a retired High Court Judge, with one or two
other members to review the cases of undertrials who have been
in jail for long including those released under this order and to
recommend to the State Government which of the cases deserve
withdrawal. The State Government can then advise the Public
Prosecutor to move the court for withdrawal of such cases. This
will not only. help reduce the pendency but will also increase the
credibility of the prosecuting agency. After giving effect to this
order the Special Court may consider giving priority to cases of
those undertrials who continue in jail despite this order on
account of their inability to furnish bail.”

15. In the present case, it appears that possibility of the trial

being completed in the foreseeable future is doubtful. It is also an

admitted position that Applicant has suffered incarceration for about 3

years 6 months & 10 days.

16. In the following decisions of the Supreme Court and

various High Courts concerning such long detention and imprisonment

of undertrial prisoner / accused on being apprehended with

commercial quantity of various contrabands, the Courts have in the

backdrop of the aforementioned propositions exercised its unfettered

jurisdiction in releasing an undertrial on bail on account of long

incarceration by using its discretionary powers:-

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16.1. In the case of Vijay Singh Vs. Union of India 10 the

Supreme Court granted bail to an undertrial-accused who was

incarcerated for a period of 4 years and 1 Month holding that Article

21 of the Constitution overrides Section 37 of NDPS Act if there is

undue delay in completion of trial on the part of prosecution.

16.2. In the case of Rabi Prakash Vs. State of Odisha11 the

Supreme Court, considering the long incarceration of an undertrial

accused who was incarcerated for 3 years and 6 months granted him

bail. The contraband in question was Ganja, the commercial quantity

of which is 20 Kilograms. In this case recovery of 247 Kilograms was

allegedly made from the accused despite which the court invoking the

right to speedy justice flowing from Article 21 and forceeable delay in

trial granted bail to the accused.

16.3. In the case of Dheeraj Kumar Vs. State of Uttar Pradesh12

the Supreme Court considering long incarceration granted bail to an

undertrial-accused who was incarcerated for 2 years and 6 months

granted him bail. The contraband in question was Ganja the

commercial quantity of which is 20 Kilograms. In this case recovery of

65 Kilograms was allegedly made from the accused despite which, the

10
Special Leave Petition (Criminal) Diary No. 43071/2024
11
2023 SCC OnLine SC 1109
12
2023 SCC OnLine 918

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Court invoking the right to speedy justice flowing from Article 21 and

forceeable delay in trial granted bail to the Accused.

16.4. In the case of Balkishan Vs. State of Madhya Pradesh13 the

Supreme Court considering long incarceration of an undertrial-accused

who was incarcerated for 2 years and 5 months granted him bail. The

contraband in question was Poppy Straw, the commercial quantity of

which is 50 kilograms when recovery of 80 kilograms was allegedly

made from the accused.

16.5. In the case of Badsha Sk. Vs. State of West Bengal14 the

Supreme Court considering long incarceration of an undertrial-accused

who was incarcerated for 2 years and 4 months granted him bail. The

contraband in question was Codeine Phosphate, the commercial

quantity of which is 1 kilograms when recovery of 100 bottles each of

100 ml. was allegedly made from the accused.

16.6. In the case of Man Mandal and Anr. Vs. State of West
15
Bengal the Supreme Court considering long incarceration of an

undertrial-accused who was incarcerated for 2 years granted him bail

despite being alleged to be in possession of commercial quantity of

contraband.

13
Petition for Special Leave to Appeal (Cri) No. 8415 of 2024
14
2023 SCC OnLine SC 1867
15
2023 SCC OnLine SC 1868

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16.7. In the case of Ankur Chaudhary Vs. State of Madhya

Pradesh16 the Supreme Court considering long incarceration of an

undertrial-accused granted him bail to an undertrial-accused who was

incarcerated for about 2 years.

16.8. In the case of Nitish Adhikary alias Bapan Vs. State of

West Bengal17 the Supreme Court considering long incarceration of an

undertrial-accused granted him bail to an undertrial-accused who was

incarcerated for 1 year and 7 months despite being alleged to be in

possession of commercial quantity of contraband.

16.9. In the case of Babor Ali Mondal Vs. State of West Bengal 18

the Supreme Court considering the long incarceration granted bail to

an undertrial-accused who was incarcerated for 1 year and 4 months.

16.10. In the case of Sukhvinder Singh Bittu Vs. State of Punjab 19 the

Supreme Court considering long incarceration of an undertrial-accused

granted him bail who was incarcerated for 1 year despite being alleged

to be in possession of commercial quantity of poppy straw.

16.11. In the case of Tinku Vs. State (NCT of Delhi)20 the Delhi High

Court considering the long incarceration of an undertrial-accused

granted him bail who was incarcerated for 2 years and 5 months. The
16
Petition for Special Leave to Appeal (Cri) No. 4648 of 2024
17
2022 SCC OnLine SC 2068
18
Criminal Appeal No. 3349 of 2024
19
Cri. Appeal No.1204 of 2024
20
2024 SCC OnLine Del 9132

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contraband in question was Heroin, the commercial quantity of which

is 250 grams. In this case recovery of 945 grams was allegedly made

from the accused despite which the High Court invoking the right to

speedy justice flowing from Article 21 of the Constitution and

forceeable delay in trial granted bail to the accused.

16.12. In the case of Kulwinder Singh Vs. State of Punjab21 the Punjab

and Haryana High Court considering long incarceration of an

undertrial-accused granted him bail who was incarcerated for 2 years

and 8 months. The contraband in question was Etizolam Salt, the

commercial quantity of which is 2.5 grams. In this case recovery of

99.876 grams was allegedly made from accused despite which the

High Court invoking the right to speedy justice flowing from Article 21

of the Constitution and delay in trial granted bail to the accused.

16.13. In the case of Amey Sanjay Jadhav Vs. State of Maharashtra22

this Court on 03.01.2025 considering long incarceration of the

undertrial-accused has granted bail to the undertrial accused who was

incarcerated for 2 years and 11 months. The contraband in question

was 1.3 kilograms of Charas, the commercial quantity of which is 1000

grams.

21
CRM-M-26704 of 2024
22
BA No.911 of 2024 decided on 03.01.2025

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16.14. In the case of Mohd. Mobin Jahurul Hasan Manihar Vs. State of

Maharashtra23 - this Court on 20.01.2025 considering long

incarceration of the under-trial accused granted bail to him who was

incarcerated for 1 year 11 months. The contraband in question was

220 gms of MD , the commercial quantity of which is 50 gms.

17. In all the above cases the right to speedy justice flowing

from Article 21 of the Constitution of India and the foreseeable delay

trial were considered as imminent grounds for grant of bail apart from

the rigours of Section 37 of the NDPS Act in the facts of the said case.

18. In view of the above, present Application is allowed in terms of

prayer clause (-) subject to the following terms and conditions:-

(i) Applicant is directed to be released on bail on furnishing

P.R. Bond in the sum of Rs. 50,000/- with one or two

sureties in the like amount;

(ii) Applicant shall report to the Investigating Officer of

concerned Police Station once every month on the third

Saturday between 10:00 a.m. to 12:00 p.m. for three

months initially and thereafter as and when called;

(iii) Applicant shall co-operate with the conduct of trial and

attend the Trial Court on all dates unless specifically

23
BA No.713 of 2024 decided on 20.01.2025

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exempted and will not take any unnecessary

adjournments, if he does so, it will entitle the prosecution

to apply for cancellation of this order;

(iv) Applicant shall not leave the State of Maharashtra without

prior permission of the Trial Court;

(v) Applicant shall not influence with any of the witnesses or

tamper with the evidence in any manner;

(vi) Applicant shall keep the Investigating Officer informed of

his current address and mobile contact number and / or

change of residence or mobile details, if any, from time to

time;

(vii) Any infraction of the above conditions shall entail

cancellation of this order.

19. It is clarified that the observations in this order are limited for

the purpose of granting Bail only and I have not made any

observations on merits of the case.

20. Bail Application stands allowed and disposed.

Amberkar [ MILIND N. JADHAV, J. ]

Digitally signed
by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2025.02.03
19:10:46 +0530

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