Harshal Desai Vs. The Narcotics Control Bureau (NCB) Case Summary You Can Listen To on Caseon

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Harshal Desai Vs. The Narcotics Control Bureau (NCB)

Manipur High Court

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Bail Application No. 12 of 2024 Page 1

IN THE HIGH COURT OF MANIPUR

AT IMPHAL

BAIL APPLICATION No. 12 of 2024

Harshal Desai aged about 55 years, S/o Praful Desai

resident of A-801, Suncity Apartment, Near Bhulka

Bhavan/Surya flats, Adajan, Surat, Gujarat – 395001.

…. Petitioner

- Versus -

The Narcotics Control Bureau (NCB) Imphal through its

Intelligence Officer, CPWD Quarters, Changangei,

Kongba Uchekon, Imphal West, Manipur – 795008.

…. Respondent

B E F O R E

HON’BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU

For the petitioner : Mr. Osbert Khaling, Advocate

For the respondents : Mr. W. Darakishwor, Sr. PCCG

Date of hearing : 22.08.2024

Date of judgment &

order : 13.12.2024

KHOIROM

BIPINCHAN

DRA SINGH

Digitally signed by

KHOIROM

BIPINCHANDRA SINGH

Date: 2024.12.13

16:55:11 +05'30'

Bail Application No. 12 of 2024 Page 2

JUDGEMENT & ORDER

(CAV)

[1] Heard Mr. Osbert Khaling, learned counsel appearing for the

petitioner and Mr. W. Darakishwor, learned senior PCCG appearing for the

respondent.

[2] The present application has been filed on behalf of Harshal

Desai under Section 439 of the Cr.P.C. 1973 with the following prayers:

(i) To issue notice to the respondent.

(ii) To grant regular bail u/s 439 Cr.P.C., 197 to release the

petitioner namely, Harshal Desai in connection with

NCB Crime No. 02/NCB/Imp/2023, dated 03.03.2023

U/s 8© & 9A read with Sec. 21©, 25A, 25 & 29 of the

ND & PS Act, 1985, and Additional Complaint dated

03.10.2023, U/s 9A, 25A, 26 and 29 of the ND & PS

Act.

(iii) Pass any order/direction which the Hon’ble Court

deems fit and proper in the facts and circumstances of

the case as to meet the end of justice.

[3] Brief facts of the case are that upon receiving secret

information on 03.03.2023, the Superintendent of NCB raid the house of

Jangminthang Guite, a resident of Moreh, Tengnoupal, 533 numbers of

plastic packets of Pseudoephidrine tablets labelled with Cetrizine

Hudrochloride Tabets 10 Mg Levocet manufactured by Sunview Biotech,

Gandhinagar were found from the kitchen of the house. Since the said

Bail Application No. 12 of 2024 Page 3

Jangminthang Guite was not present in the house at the time, his mother

namely, Mrs. Nemkhohat Guite was arrested.

In the statement of Nemkhohat Guite, the contraband was

received from one Sultani and her husband Abdul Wakil of Delhi. Further,

in the statement of Abdul Wakil, he obtained the said contraband from

Ahmedabad based firm namely, M/s Recover Healthcare located at Sarkhej,

Ahmedabad, Gujarat on 31.01.2023.

[4] Upon being conducted the M/s Recover Healthcare premises,

the NCB arrested 3 (three) persons namely, Mr. Nitin Panchal, Mr. Anil

Nayaka and Bhadresh Patel who was the owner of M/s Recover Healthcare

and other 2 (two) employees of the firm.

In the statements of Mr. Nitin Panchal, Mr. Anil Nayaka and

Bhadresh Patel, on 19.01.2023 the said contraband was sent by Ardor

Drugs Pvt. Ltd., village Songadh, District Tapi along with goods, official and

e-way bills issued by Ardor Drugs Pvt. Ltd. showing Admos-SR tablets.

Further, in the statement of Bhadresh Patel, Hetal Shah

rejected the goods received from Ardor Drugs Pvt. Ltd., to whom the same

were tried to sell out. Thereafter, Bhadresh Patel worked with Abdul Wakil

for the same labelling with Levocet in lieu of any Pseudoephedrine content

tablets for free transit. For the said deal of 15 lakhs Pseudoehedrine tablets,

Abdul Wakil made payment of Rs. 11.68 lakh in the bank account of M/s

Recover Healthcare with Bank of Baroda and Bhadresh Patel paid Rs. 5

lakhs to Ardor Drugs Pvt. Ltd. in the account of Bank of India. Further,

transportation of the said goods was made from Delhi to Imphal. Part of

Bail Application No. 12 of 2024 Page 4

the goods was exported to Myanmar and the remaining to Moreh from

where the same was seized by NCB, Imphal Manipur.

[5] On many occasions, Harshal Desai who is the managing

director of Ardor Drugs Pvt. Ltd. issued bogus invoices to M/s Recover

Healthcare and Bhadresh Patel, owner of the M/s Recover Healthcare got

commission upon such invoices without actual supply of goods. Bhadresh

Patel has been known to Abdul Wakil and they have done similar deal

successfully long time back. In connection with the alleged offence, Harshal

Desai along with its employee Mehul Desai were arrested by NCB, Imphal,

Manipur and presently in the judicial custody at Manipur Central Jail, Sajiwa.

[6] According to the petitioner, on 13.08.2023, the

petitioner/accused and another accused, Mehul Desai made a voluntary

statement under Section 67 of the NDPS and on the same day, the

petitioner has already retracted his so-called statement by letter of

retraction dated 13.08.2023 which has already been submitted on record of

Special Judge (NDPS), Manipur.

On 14.08.2023 the petitioner filed a remand objection being

registered as Cril. Misc. (B) No. 173 of 2023 before the Ld. Special Judge

(NDPS), Manipur for releasing the accused on bail; however the case was

rejected on the same day. Even though another remain objection was filed

on 16.10.2023 being registered as Cril. Misc(B) No. 249 of 2023 before the

same Court, the same was also rejected vide order dated 30.11.2023.

Further, a bail application being Bail Appln. No. 7 of 2024 was filed before

this High Court, but the same was withdrawn by the previous advocate on

Bail Application No. 12 of 2024 Page 5

05.02.2024 without entering into merit with liberty to file a fresh. Therefore,

the petitioner/accused filed the present application on the following

grounds:

(i) The so-called purported confessional statement of

the petitioner under Section 67 of NDPS Act is not

the voluntary statement. The signature obtained

upon the confessional statement has been taken by

coercion and under duress and the same is given

involuntarily and without the free will of the

applicant who has been made to testify against his

own self which is against the provisions of the law

and barred by Section 25 and 26 of the Indian

Evidence Act.

(ii) All the statements given before the Investigating

Officer during their custody are not admissible in

evidence in view of clear provision of law under

Section 25 and 26 of the Indian Evidence Act as well

as law laid down by the Hon’ble Apex Court in the

reportable judgment delivered in Criminal Appeal

No. 152 of 2023 [Tofan Singh V. State of Tamil

Nadu] and judgment of Hon’ble Apex Court reported

in 1984 (1) SC 284. Even otherwise the statements

of the co-accused and the present applicant do not

amount to statements u/s 67 of NDPS Act.

Bail Application No. 12 of 2024 Page 6

(iii) Except the so-called confessional statement, there is

no material against the present applicant who has

already retracted his so-called statement by letter of

retraction dated 13.08.2023 which has already been

submitted on record of Trial Court.

(iv) In the godown of M/s Recover Healthcare, there

were many other goods procured from other various

parties.

(v) The present applicant or any person from the Ardor

Drugs Pvt. Ltd. were not in contact with any drug

peddler or any other person namely, Abdul Wakil

and has never communicated or even seen Mr.

Abdul Wakil who is known to Bhadresh Patel from

M/s Recover Healthcare.

(vi) The present applicant nowhere attributed any role in

the alleged transaction using false invoices as

narrated by the prosecution case itself.

(vii) According to Bhadresh Patel, this was not the first

transaction. Not only that, they were in contact with

each other through Trade India, a B2B business

platform for a long time.

(viii) The Call Detail Reports collected by the Investigating

Agency reveals that the present applicant has

neither talked with Abdul Wakil at any point of time

Bail Application No. 12 of 2024 Page 7

till today. There is nothing wrong or offensive in the

certain periodical telephonic contact of the applicant

with Bhadresh Patel, Mehul Desai. It is not even the

case of prosecution that the applicant was having

any contact with Jangminthang Guite and his wife

Sultani.

(ix) Prima facie cases can be made out only on the basis

of the material which is legally admissible in

evidence. Inadmissible and irrelevant material

cannot be the basis of the prima facie case in

criminal jurisprudence.

(x) The Ld. Special Judge failed to deal with or even

consider the applicant’s written argument submitted

in support of Bail Application being Cril. Misc.(B) No.

249 of 2023.

(xi) The license of the Ardor Drug Pvt. Ltd. is still in

existence, which has never been revoked or

cancelled since the company has never breached

any conditions mentioned in the license.

(xii) The seized substances are neither the Narcotic nor

Psychotropic substances but the same is a simple

controlled substance and not governed by ND & PS

Act and therefore, no commercial quantity or

Bail Application No. 12 of 2024 Page 8

otherwise is prescribed for such controlled

substance.

(xiii) Bar under Section 37 of the ND & PS Act would not

be applicable in the present case and the same is

only applicable to cases under provisions of Section

19, 24 and 27A.

(xiv) Even Sections 9A, 25A, 26 and 29 of the ND & PS

Act are also not applicable on prima facie case itself

as there is no violation of license condition and there

has been no complaint or even inquiry from the Tax

Department. Furthermore, all the accounts and GST

returns are tallied.

(xv) It is well settled principle, that the bar under Section

37 of the NDPS Act would seize to exist and bail can

be granted even if the quantity involve dis

commercial quantity, if the Court is satisfied that

prima facie no offence is made out against the

accused after perusing the materials on record.

(xvi) The applicant has in fact no criminal antecedents at

all, however the applicant was implicated in false

case of NDPS at Surat, Gujarat by DRI, wherein the

applicant was released on bail by High Court of

Gujarat. The order remained confirmed by the

Bail Application No. 12 of 2024 Page 9

Hon’ble Supreme Court of India since the SLP by DRI

has been rejected by Apex Court.

(xvii) The presence of the applicant can be secured by

imposing suitable conditions upon him and for that

purpose, his jail custody is not required. It is a

settled principle of law that “bail is a rule ad jail is

an exception”. There is a big distinction between

pre-trial custody and post trial custody.

(xviii) The trial is likely to take a long time and keeping the

applicant behind the bar for an uncertain long period

would amount to pre-trial punishment to him which

directly violates his fundamental right enshrined

under Article 21 of the Constitution of India.

[7] Mr. Osbert Khaling, learned counsel appearing for the

petitioner further submits that the petitioner was arrested on 05.08.2023

and first remanded to judicial custody on 09.08.2023 in connection with

NCB Crime No. 02/NCB/Imp/2023, dated 03.03.2023 U/s 8(c) & 9A to be

read with 21(c), 25(A), 25 & 29 of the ND & PS Act, 1985 and till dater the

accused has been languishing at Manipur Central Jail, Sajiwa for nearly 14

months. When no prima facie case is made out, the accused must be

released on bail, but, even if prima facie case is made out, the accused

deserves to be enlarged on bail if his presence in the trial can be secured

by imposing necessary conditions. Further, there is undue delay in trial and

Bail Application No. 12 of 2024 Page 10

till date no framing of charges has been done after a span of 11 months

after having been filed the chargesheet.

After arrest, a person cannot be made a witness against

himself as the same has been barred under Article 30(3) of the Constitution

of India. Even otherwise, the other co-accused persons have already

retracted their respective statements. The entire case of the prosecution

against the applicant is fully based on the statement of co-accused

Bhadresh Patel and confessional statement of applicant himself, while he

was in custody. Both of these statements are not admissible in evidence

and there is no admissible material available against the applicant. The

present petitioner has been unnecessarily harassed by the respondent as

to the fact that even after chargesheet, the petitioner was detained under

PIT NDPS, just to keep him in jail even if bail is granted but the said

detention was set aside by this High Court on 26.07.2024.

[8] Mr. W. Darakishwor, learned senior PCCG appearing for the

respondents submits that the present petitioner (Harshal Desai) has

masterminded the entire modus operandi of this illegal trade business by

performing himself as the owner/director of M/S Ardor Drug Pvt. Ltd,

Ahmedabad, Gujarat. The seized Pseudoephedrine tablets fake labelled as

"CETRIZINE HYDROCHLORIDE TABLETS 10 MG LEVOCET" weighing

110.5kg was brought from Ahmedabad to Moreh via Delhi during the month

of February 2023 in violation of the existing laws in force under the

mastermind of the present petitioner, accused Harshal Desai, Bradesh Patel

in conspiracy with the other co-accused. The accused Harshal Desai is the

Bail Application No. 12 of 2024 Page 11

main kingpin behind this inter-state trafficking of pseudoephedrine tablets

from Gujarat to Myanmar, he was the main supplier who was directly

supplying the drugs to Myanmar through his associates- Mehul Desai,

Bradesh Patel, Abdul Wakil and other co- accused after misusing the unique

registration number allotted to its company Ardor Drugs Pvt. Ltd., in lure of

earning more money he diverted Pseudoephedrine to illicit channel.

The accused Harshal Desai is involved in the connivance with

Mehul Desai and Bradesh Patel for generating bogus bill of various

pseudoephedrine tablets. For such prior offences they had already been

arrested by the Directorate of Revenue Intelligence, Surat under Crime No.

1 of 2020 and they were on bail during the execution of arrest of warrant

issued by the Special Judge, ND & PS, Manipur.

It is also clear from the statement of one tempo driver as well

as from the statement of Mehul Desai that under the instruction of Harshal

Desai and Bradesh Patel 26 carton boxes were delivered from the Ardor

Drugs Pvt. Ltd., Songadh-Ukai Road, Tapi to M/s Recover Healthcare,

Sarkhej, Ahmedabad. There has been similar kind of seizure of 13 Lakh

Pseudoephedrine tablets affected in Sagaing Region of Myanmar in August

2020. Again 39 lakhs of pseudoephedrine tablets in the brand Colzen

containing Pseudoephedrine were seized in Champai, Mizoram in March,

2023.

The seized Pseudoephedrine tablets is not only controlled

medicine, but it is the main raw material for processing of

Methamphetamine (ATS) - a banned drug in neighbouring country

Bail Application No. 12 of 2024 Page 12

Myanmar. And as said earlier also, it is a cause of concern for National

Security. The seized 533 packets in the present case are the part of 1500

packets of Pseudoephedrine tablets that was manufactured by Ardor Drugs

Pvt. Ltd., Songadh, Tapi. The rest 967 packets got succeeded to go through

Moreh border to Myanmar. Thus, this case is also having international

linkage.

The present applicant is the main kingpin who has diverted

the huge quantity of Pseudoephedrine tablets into illegal channel which has

somehow crossed Myanmar border either from Mizoram side or Manipur

side. The accused Harshal Desai has criminal antecedents and he is on bail

in NDPS case No. 48/2020 registered at Principal District and Session Court,

Surat, Gujarat.

This is the crime committed by the petitioner while being

released on bail in connection with NDPS case no. 48/2020 registered at

Principal District and Session Court, Surat, Gujarat which was initiated by

DRI, Surat.

There is still various new aspects which are yet to be explored

to ascertain the further linkage or the source of the seized 110.5 kg of

Pseudoephedrine tablets, which will not be possible if the accused is granted

bail at this juncture. During the course of investigation, house search at the

residence of Nitin Panchal (one of the accused in the case from Gujarat)

was conducted by NCB and recover some documents of M/s Elite medical

store, Aizawl which surfaced in the instant case. Follow up was conducted

at M/s Elite Medical Store, Aizawl, Mizoram by team NCB, Guwahati on

Bail Application No. 12 of 2024 Page 13

dated 03/11/2023 and statement of the proprietor of M/s Elite store

recorded. Accordingly, letter vide NCB 02/NCB/Imp/2023 dated 03.11.2023

to the State Drug Controller, Mizoram, Aizawl was requested to enquire and

take necessary action as per D&C act and other relevant laws against

diversion of pseudoephedrine tablets. Directorate of Health Services-Food

& Drugs Administration wing- Mizoram vide order dated 21st Feb, 2024

cancelled the Drug License of Elite Medical store.

The enquiry was conducted at NCB, Ahmedabad on

12.12.2023 regarding details of URN issued to M/s Ardor Drug Pvt. Ltd.

Accordingly, letter issued to ZD, Ahmedabad on dated 19.12.2023 seeking

details on the URN issued by NCB, Ahmedabad. Further, letter was also

issued to the Zonal Director, NCB, Ahmedabad Zonal Unit on 15.03.2024

with a request to cancel the URN of M/s Ardor Drug Pvt Ltd issued by NCB

Ahmedabad Zonal Unit or any other URN issued to the accused. Previously,

NCB, Ahmedabad informed that proposal for cancellation of URN of M/s

Ardor Drug Pvt Ltd in 2021 was sent to concerned DDG(R) for violation of

the provision of RCS order 2013 as the company premises was raided by

DRI, Surat, July 2020 and mismatch in quantities of Ephedrine and

Pseudoephedrine found.

The statements of 6 (six) employees of M/s Ardor Drug Pvt.

Ltd. was recorded at NCB, Ahmedabad on 12.12.2023 to 14.12.2023, all the

6(six) employees have stated that details of record of procurement /

production/sales/marketing/transportatio of pseudoephedrine/ephedrine

Bail Application No. 12 of 2024 Page 14

are maintained and controlled by Harshal & Mehul Desai. All bills/invoices

are generated by Harshal and Mehul which clearly show that the employees

are made to work as per the instruction of Harshal and Mehul Desai.

Further investigation and financial investigation is going on to

trace and break the chain of illegal trade considering the gravity of the

offense committed by the petitioner which are serious in nature. Therefore,

considering the key role being played by the accused in the instant case,

mere long incarceration of an accused in judicial custody should not be a

ground to release the accused on bail as it will frustrate the whole objective

of stringent law laid down by the parliament to combat illegal trafficking of

drugs and will perpetuate to further crime, the same principle has been laid

in a plethora of cases.

The present petitioner/accused, Harshal Desai has admitted

in his statement during investigation that he used to generate tax invoice

in the name of Recover Healthcare but the products mentioned in the tax

invoice were supplied to some other parties. He repeatedly used to generate

false bills with the name of some other products for the supply of

pseudoephedrine-based tablet to Bradesh Patel to sell the said

Pseudoephedrine tablets. For the said purpose he paid 10 lakhs as

commission to Bradesh Patel which is corroborated with the bank account

statement.

[9] Furthermore, Mr. W. Darakishwor, learned senior PCCG

appearing for the respondent contended that the petitioner/accused

Harshal Desai has criminal antecedent and he is on bail in ND & PS Case

Bail Application No. 12 of 2024 Page 15

No. 48 of 2020 registered at Principal District and Session Court, Surat,

Gujarat. While the petitioner was on bail, he has committed the present

offence which was registered under NCB Crime No. 02/NCB/Imp/2023 U/s

8(c) & 9A R/w S. 21(c), 25A, 25 & 29 of ND & PS Act by the NCB, Division

Unit Imphal, Manipur. Because of being an antecedent criminal, the

petitioner/accused was detained under PIT, NDPS Act by issuing a detention

order dated 28.02.2024 through the Joint Secretary, Ministry of Finance and

the said detention order was confirmed from the Advisory Board.

The offences under the ND & PS Act are considered non-

bailable offences due to the serious nature of crime. Therefore, granting

bail under these sections is very complex and often depends on the specific

circumstances of the case.

In this regard, the learned senior PCCG appearing for the

respondent relied upon the following judgments:

W.P.(Cril) No. 11 of 2024 passed by the Division Bench of

the High Court of Manipur dated 26.07.2024 –

"[4] Mr. PN Lakhani, learned counsel appearing for the petitioner

raised only one ground in assailing the impugned detention orders.

The learned counsel submitted that the detaining authority has

knowledge that the petitioner was in judicial custody in connection

with a criminal case involving seizure of a commercial quantity of

contraband drugs, however, while passing the impugned detention

order, nothing has been mentioned or indicated in the said

detention order as well as in the grounds of detention that the

petitioner was likely to be released on bail. It has been submitted

that there was no cogent material before the detaining authority to

arrive at its subjective satisfaction that there was/is a real possibility

of the petitioner being released on bail, the face of the provisions

of Section37 of ND&PS Act, 1985. The learned strenuously

submitted that there was total non-appliance of mind on the part

of the detaining authority and the impugned detention order had

been passed in the mechanical manner and as such, the same is

liable to be quashed and set aside.

Bail Application No. 12 of 2024 Page 16

[7] In the present case, the petitioner was already arrested and

kept in judicial custody in connection with the seizure of a

commercial quantity of narcotic drugs and therefore, Section 37 of

the Narcotic Drugs and Psychotropic Substances Act, 1985 would

have application and grant of bail would be subject to the stringent

conditions provided thereunder. Nothing is mentioned in the

impugned detention order that the detaining authority has arrived

at his subjective satisfaction that the petitioner is likely to be

released on bail. Only in the grounds of detention, the detaining

authority merely referred to the fact that a bail application had been

filed without deciding whether there was a likelihood of the

petitioner being released on bail, notwithstanding the applicability

of section 37 of the ND&PS Act and passed the impugned detention

order. Accordingly, we are of the considered view that the detaining

authority passed the impugned detention order without application

of mind and in a mechanical manner and on this ground alone, the

impugned detention orders are liable to be quashed and set aside."

PR Despande V. Maruti Balaram Haibatti [(1998) 6 SCC

507] -

[5] Relying on those decisions Agrawal, J speaking for the two-

judge bench in RN Gosain v Yashpal Dhir has observed thus: (SCC

Ppp. 687-88 para 10)

"10. Law does not permit a person to both approbate and

reprobate. This principle is based on the doctrine of

election which postulates that no party can accept and

reject the same instrument and that 'a person cannot say

at one time that a transaction is valid and thereby obtain

some advantage, to which he could only be entitled on the

footing that it is valid, and then turn round and say it is

void for the purpose of securing some other advantages."

Asante Pinket Owusu V. Narcotics Control Bureau [(1994)

6 SCC 731] -

3. At the outset, learned counsel appearing on behalf of the

applicant submitted that rigors of Section 37 of the NDPS Act will

not apply to the present case, since the recovery is that of a

controlled substance.

4. The learned counsel submitted that the complaint has been

filed and charges have been framed by the learned Trial Court, and

till date only three witnesses have been examined. So far as,

material witnesses are concerned, none have been examined till

date. He stated that the way and the manner in which the trial is

proceeding it is likely to take substantial time.

5. The learned counsel submitted that the applicant is in

incarceration since the date of arrest, i.e., 05.11.2018, which is

more than five years.

Bail Application No. 12 of 2024 Page 17

20. It is also crucial to note that maximum punishment, without

any minimum, provided for in Section 25A of the NDPS Act is

imprisonment for a term which may extend to 10 years with fine

which may extend to 1,00,000/-.

21. The Hon'ble Supreme Court, while taking note of the delay

in disposal of cases under the NDPS Act, had issued certain

directions, subject to general conditions, in Supreme Court Legal

Aid Committee (Representing Undertrial Prisoners) v. Union of

India: (1994) 6 SCC 731 which are reproduced as under:

"15……………………………………………………………………..

(i) Where the under trial is accused of an offence(s) under

the Act prescribing a punishment of imprisonment of five

years or less and fine, such an under trial shall be released

on bail if he has been in jail for a period which is not less

than half the punishment provided for the offence with which

he is charged and where he is charged with more than one

offence, the offence providing the highest punishment. If the

offence with which he is charged prescribes the maximum

fine, the bail amount shall be 50% of the said amount with

two sureties for like amount. If the maximum fine is not

prescribed bail shall be to the satisfaction of the Special

Judge concerned with two sureties for like amount.

(ii) Where the under trial accused is charged with an

offence(s) under the Act providing for punishment exceeding

five years and fine, such an under trial shall be released on

bail on the term set out in (i) above provided that his bail

amount shall in no case be less than Rs. 50,000 with two

sureties for like amount.

(iii) Where the under trial accused is charged with an

offence(s) under the Act punishable with minimum

imprisonment of ten years and a minimum fine of Rupees

one lakh, such an under trial shall be released on bail if he

has been in jail for not less than five years provided he

furnishes bail in the sum of Rupees one lakh with two

sureties for like amount.

(iv) Where an under trial accused is charged for the

commission of an offence punishable under Sections 31 and

31-A of the Act, such an undertrial shall not be entitled to be

released on bail by virtue of this order.”

22. Section 436A of the CrPC provides that if an accused has

undergone detention for a period extending up to one half of the

maximum period of imprisonment specified for that offence under

Bail Application No. 12 of 2024 Page 18

that law, he shall be released by the Court on his personal bond

with or without sureties. Section 436A of the CrPC reads as follows:

"[436-A. Maximum period for which an undertrial prisoner

can be detained.-- Where a person has, during the period of

investigation, inquiry or trial under this Code of an offence

under any law (not being an offence for which the

punishment of death has been specified as one of the

punishments under the law) undergone detention for a

period extending up to one-half of the maximum period of

imprisonment specified for that offence under that law, he

shall be released by the Court on his personal bond with or

without sureties:

Provided that the Court may, after hearing the Public

Prosecutor and for reasons to be recorded by it in writing,

order the continued detention of such person for a period

longer than one-half of the said period or release him on bail

instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be

detained during the period of investigation, inquiry or trial for

more than the maximum period of imprisonment provided

for the said offence under the law.

Explanation.--In computing the period of detention under

this section for granting bail, the period of detention passed

due to delay in proceeding cause by the accused shall be

excluded.]"

23. Undisputedly, the applicant in the present case has

undergone detention for a period in excess of one-half of the

maximum period of imprisonment specified for the offence under

Section 25A of the NDPS Act.”

Union of India V. Prateek Shukla [(2021) 5 SCC 430] -

“4. It has been alleged that the disclosure revealed that a huge

quantity of the controlled substance, acetic anhydride, was

purchased and diverted to a godown situated at Village Karheda,

Ghaziabad. During the search and seizure of the premises, a

quantity of 9650 kg of acetic anhydride was alleged to have been

recovered and empty drums of acetic anhydride were also found.

Notices under Section 67 of the NDPS Act were also issued to one

Shamsuddin and Bismillah Khan Ahmadzai. It has been alleged that

the respondent, the co-accused Himanshu Rana and Shamsuddin

disclosed that Bismillah Khan Ahmadzai is a Director of the company

involved in its day to day affairs. Bismillah Khan Ahmadzai was

apparently residing in the US and was arrested on his return to

India. The residential premises of Shamsuddin Qarizada were

searched and 500 gm of acetic anhydride was allegedly recovered.

Bail Application No. 12 of 2024 Page 19

8.1. The respondent is alleged to be a part of an international

syndicate involved in a diversion of a controlled substance.

8.2. The respondent is a Director of Altruist Chemicals Pvt. Ltd.

8.3. Having regard to the incriminating material which has been

recovered during the course of the investigation, as set out in the

complaint, the involvement of the respondent prima facie has been

shown to exist.

8.4. In a matter involving serious violations of the NDPS Act, the

Single Judge of the High Court was not justified in granting bail.

8.5. Under the NDPS Act, the burden of proof lies on the accused

and not the prosecution and the High Court has wrongly reversed

the burden of proof.

8.6. Absolutely no valid reasons have been indicated in the

judgment¹ of the Single Judge for the grant of bail.

12. Ex facie, there has been no application of mind by the High

Court to the rival submissions and, particularly, to the seriousness

of the allegations involving an offence punishable under the

provisions of the NDPS Act. Merely recording the submissions of the

parties does not amount to an indication of a judicial or, for that

matter, a judicious application of mind by the Single Judge¹ of the

High Court to the basic question as to whether bail should be

granted. The provisions of Section 37 of the NDPS Act provide the

legal norms which have to be applied in determining whether a case

for grant of bail has been made out. There has been a serious

infraction by the High Court of its duty to apply the law. The order

granting bail is innocent of an awareness of the legal principles

involved in determining whether bail should be granted to accused

of an offence under the NDPS Act. The contention of the respondent

a person that he had resigned from the company, Altruist Chemicals

Pvt. Ltd., must be assessed with reference to the allegations in the

criminal complaint which has been filed in the Court of the District

and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The

relevant part of the complaint reads as follows:

"18. That during investigation of the case, letter dated 27-

11-2018 was sent to the Registrar of Companies for

providing details of the Directors, etc. of the company in

question i.e. M/s Altruist Chemicals Pvt. Ltd. and vide its

report dated 3-12-2018 Registrar of Companies provided

the said information and from the perusal of said

information/documents, it reveals that accused Prateek

Shukla and Bismillah Khan are the Directors. Accused

Himanshu Rana was also Director but he has resigned from

the directorship. From the perusal of the documents, it also

reveals that they had registered the company i.e. Altruist

Chemical Pvt. Ltd. at 001. Block Ab-Sector-45, Noida, which

is a residential area and accused persons also obtained

Bail Application No. 12 of 2024 Page 20

Unique Registration No. from the NCB on the abovesaid

premises."

14. For the above reasons, we are of the view that the High

Court has misapplied the law to the facts in arriving at a decision

for the grant of bail to the respondent. We accordingly allow the

appeal and set aside the impugned judgment and order of the High

Court dated 7-5-20191. As a consequence, the bail which has been

granted by the High Court to the respondent shall stand cancelled.

The respondent shall surrender forthwith as a result of the g

cancellation of bail by the present order of this Court.”

Bail Application No. 5030 of 2012 [Karuthan Ponnaiya &

Anr. V. Senior NCB, State of Kerala] passed by the High

Court of Kerala –

“5. It is not disputed that Ephedrine is a controlled substance.

There is no categorization of small quantity or commercial quantity

so far as it relates to controlled substances. As can be seen from

the definition of commercial quantity in Section 2 (viia) of the Act it

is clear that it applies only to narcotic drugs or psychotropic

substances. Section 9A deals with the power to control and regulate

controlled substances, which reads:

"(1) If the Central Government is of the opinion that, having

regard to the use of any controlled substance in the

production or manufacture of any B.A. No: 5030/2012

narcotic drug or psychotropic substance, it is necessary or

expedient so to do in the public interest, it may, by order,

provide for regulating or prohibiting the production,

manufacture, supply and distribution thereof and trade and

commerce therein.

(2) Without prejudice to the generality of the power

conferred by sub-section(1), an order made thereunder may

provide for regulating by licenses, permits or otherwise, the

production, manufacture, possession, transport, import

inter-State, export inter-State, sale, purchase, consumption,

use, storage, distribution, disposal or acquisition of any

controlled substance."

The contravention of orders made under section 9A is made

punishable under section 25A. The punishment prescribed is

rigorous imprisonment for a term which may extend to ten years

and fine which may extend to one lakh B.A. No: 5030/2012 rupees.

8. The fact that the rigour mentioned in section 37 (1)(b) of the Act

is not applicable to the facts of the case, does not automatically

lead to any conclusion that the B.A. No: 5030/2012 petitioner is

entitled to get bail. Section 37(2) makes it clear that 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 or

any other law for the time being in force, for the granting of bail.

Bail Application No. 12 of 2024 Page 21

Therefore, it is manifest that even if the rigour under section

37(1)(b) is not applicable, the Court can refuse bail, if the Court is

of the view that the accused persons are likely to flee or will become

unavailable to put them to trial or if there are other circumstances

justifying negation of bail. It is pointed out that the final report in

this case was filed on 22.06.2012 and it is now pending before the

Sessions Court as S.C. No: 681/2012. It is also pointed out that the

petitioners are actually carriers or peddlers of the controlled

substance and that, it was not carried by them innocuously without

knowing the gravity of the offence. It is also pointed out that the

petitioners are from Tamil Nadu and are B.A. No: 5030/2012

persons having international connections and so once they are

released on bail it would be practically impossible to secure their

presence to put them to trial.

10. I have carefully examined the entire available records and

particularly the allegations levelled against the accused. The nature

and gravity of the offence, possibility B.A. No: 5030/2012 of the

accused to flee from justice and the likelihood of their indulging in

commission of similar offences as alleged by the prosecution are

also taken note of. Considering all these aspects, I am not inclined

to grant bail to the accused, and hence this application is dismissed.

The learned trial Judge is directed to try and dispose of the case at

the earliest.”

[10] In support of the present case, Mr. Osbert Khaling, learned

counsel appearing for the petitioner relied upon the following judgments:

Niranjan Jayantilal Shah V. Directorate of Revenue

Intelligence [2013 SCC OnLine 4608] -

“6. During the course of arguments, it was fairly conceded by

learned counsel for the respondent that bar of Section 37 of the

NDPS Act is not attracted in the present case since as per the

prosecution 100 kgs. of Pseudoephedrine was recovered which is a

controlled substance within the meaning of Section 2(vii) (b) of the

Act. Pseudoephedrine is not a narcotics drug as envisaged under

Section 2(vil)(a) of the Act. In N.C. Chellathambi (supra) one tonne

of ephedrine was recovered, in Ajay Aggarwal (supra) recovery was

of 1600 liters of Acctic Anhydride, In Rajiv Kumar Sukha (supra)

recovery was of 25 kgs powder ephedrine hydrochloride, in Falyaz

Ahmed Rasool Shaikh (supra) and another recovery was of 290 kgs

of pseudoephedrine, in Chakrapani Dutt (supra) recovery was of

100 liters of Acctic Anhydride, and in all these cases since the

accused had remained in custody for certain period, they were

released on ball. As regards Rizwan Ahmed, where the bail

application was dismissed, it is fairly conceded by learned counsel

for DRI that DRI had not taken any plea that the petitioner was not

entitled to bail due to rigour of Section 37 of the NDPS Act on which

ground alone the application was dismissed, however, it was

Bail Application No. 12 of 2024 Page 22

submitted that since the SLP has been dismissed, therefore, the

petitioner is not entitled for ball. In Department of Customs (supra)

relied upon by learned counsel for the petitioner, it was observed

that the judgment in Rizwan Ahmad is contrary to the explicit

language of Section 37 of NDPS Act and the same is per incuriam.

7. Keeping in view the totality of facts and circumstances of the

case, coupled with the fact that the petitioner is in custody since

15th December, 2011, he is admitted to bail on his furnishing

personal bond in the sum of Rs. 50,000/- with one surety in the like

amount to the satisfaction of the concerned Trial Court. Petitioner

shall deposit his passport, If any, with the Trial Court and shall not

leave the country without the permission of the concerned Trial

Court. He is further directed to furnish his current address to DRI

and in case of any change in address, DRI be informed

immediately.”

Rafael Palarox Garcia V. Union of India & Anr. [2008 SCC

OnLine Bom 1353 : (2008) 6 AIR Bom R. 709 : (2009) 2 AIR

Jhar R (NOC 518) 177 : 2009 Cri LJ 446] -

“29. There is extensive amendment introduced in N.D.P.S. Act.

The offence falling under Section 9-A read with Section 25-A is

punishable with imprisonment which may extend to 10 years and

also fine which also may extend to Rs. one lac. There was an

embargo on the powers of the Court in granting ball under the old

provisions of Section 37(1)(b) of the Act. From Section 37(1)(b) the

term "imprisonment of five years or more" has been deleted and

substituted by "for offence under Section 19 or Section 24 or

Section 27-A and also for offences involving commercial quantity",

the case of the Applicant is no more covered by Section 37(1)(b) of

the Act. The concept of commercial quantity does not apply to

controlled substance in view of the provisions relating to

commercial quantity specially Section 2(viia) and Section 2(vild) of

the Act and the notification issued by the Government specifying

the small quantities and commercial quantities also shows that this

concept is peculiar to Narcotic Drugs and Psychotropic Substances.

30. In view of the above legal position and the decision in the

case of Shreeniwas Bansidhar Somani (supra), I am inclined to

grant bail to the Applicant.

31. The Applicant Rafael Palafox Garcia to be released on bail

in the sum of Rs.1,00,000 (Rs. one lac Only) with one or two

sureties to make up the said amount. The sureties shall be local

sureties. Before being released on bail the Applicant shall inform

the NCB office the address at which he will reside during the period

that he is on bail. Any change in the address shall also be

communicated to the NCB within two days. The Applicant shall

report to the NCB office once in a week, till conclusion of the trial.”

Bail Application No. 12 of 2024 Page 23

Sanjeev Chandra Agarwal & Anr. V. Union of India [(2021)

20 SCC 57] -

“3. The factual position is that no narcotic drugs or psychotropic

substances were recovered from the premises of the two

appellants. As per the prosecution, 4 kg of Acetic Anhydride

(Controlled Substance) was allegedly found from the premises of

the appellants located at Gyan Scientific Agency, Varanasi. The High

Court was not correct in relying on the statements made by other

accused under Section 67 of the NDPS Act, in light of the judgment

of this Court in Tofan Singh v. State of T.N.2 It is pointed out that

the charges under Sections 9-A and 25 of the NDPS Act have been

framed and to this extent there is no challenge and dispute.”

State of Haryana V. Samarth Kumar [2022 SCC OnLine SC

2087] –

“7. The order of the Special Court granting regular bail to the

respondents shows that the said order was passed in pursuance of

the anticipatory bail granted by the High Court. Therefore, the same

cannot be a ground to hold that the present appeals have become

infructuous.”

Criminal Appeal No. 2790 of 2024 [Sheikh Javed Iqbal

@ Ashfaq Ansari @ Javed Ansari V. State of Uttar

Pradesh] passed by the Hon’ble Supreme Court –

“29. Going back to K.A. Najeeb (supra), this Court thereafter

proceeded to hold that Section 43D(5) of the UAP Act does not oust

the ability of the constitutional courts to grant bail on grounds of

violation of Part III of the Constitution. Long incarceration with the

unlikelihood of the trial being completed in the near future is a good

ground to grant bail. This Court also distinguished Section 43D(5)

of the UAP Act from Section 37 of the NDPS Act. It has been held

as follows:

17. It is thus clear to us that the presence of statutory

restrictions like Section 43-D(5) of the UAPA per se does not

oust the ability of the constitutional courts to grant bail on

grounds of violation of Part III of the Constitution. Indeed,

both the restrictions under a statute as well as the powers

exercisable under constitutional jurisdiction can be well

harmonised. Whereas at commencement of proceedings,

the courts are expected to appreciate the legislative policy

against grant of bail but the rigours of such provisions will

melt down where there is no likelihood of trial being

completed within a reasonable time and the period of

incarceration already undergone has exceeded a substantial

part of the prescribed sentence. Such an approach would

safeguard against the possibility of provisions like Section

43-D(5) of the UAPA being used as the sole metric for denial

of bail or for wholesale breach of constitutional right to

Bail Application No. 12 of 2024 Page 24

speedy trial.

18. Adverting to the case at hand, we are conscious of the

fact that the charges levelled against the respondent are

grave and a serious threat to societal harmony. Had it been

a case at the threshold, we would have outrightly turned

down the respondent's prayer. However, keeping in mind

the length of the period spent by him in custody and the

unlikelihood of the trial being completed anytime soon, the

High Court appears to have been left with no other option

except to grant bail. An attempt has been made to strike a

balance between the appellant's right to lead evidence of its

choice and establish the charges simultaneously beyond any

the doubt and respondent's rights guaranteed under Part III

of our Constitution have been well protected.

19. Yet another reason which persuades us to enlarge the

respondent on bail is that Section 43-D(5) of the UAPA is

comparatively less stringent than Section 37 of the NDPS

Act. Unlike the NDPS Act where the competent court needs

to be satisfied that prima-facie the accused is not guilty and

that he is unlikely to commit another offence while on bail;

there is no such precondition under UAPA. Instead, Section

43-D(5) of the UAPA merely provides another possible

ground for the competent court to refuse bail, in addition to

the well-settled considerations like gravity of the offence,

possibility of tampering with evidence, influencing the

witnesses or chance of the accused evading the trial by

absconsion, etc.