Rajasthan High Court – Jodhpur
Ashok vs State Of Rajasthan on 20 July, 2026
[2026:RJ-JP:32787]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10517/2025
CNR: RJHC010772702025
URN: CRLMB / 21777U / 2025
Ashok S/o Sohan Lal, Aged About 26 Years, Krishna Nagar
Kosana Ps Pipar City District Jodhpur
(Presently Lodged In Dist. Jail Pali)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Varun Maheshwari (through VC)
For Respondent(s) : Mr. Surendra Bishnoi, PP
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
20/07/2026
1. The applicant has filed the present bail application under
Section 483 of BNSS being aggrieved against the order dated
21.07.2025 passed by the learned Special Judge, NDPS Act Cases,
Pali, and (Additional Sessions Judge) Pali Rajasthan, in Criminal
Misc. Case No.665/2025, whereby the bail application filed by the
accused-applicant under Section 483 B.N.S.S. was rejected. The
accused-applicant is behind the bars, pursuant to the F.I.R.
No.82/2024 registered at Police Station Sadar Pali, District Pali
against the accused-applicant for the offence punishable under
Sections 8/21 of NDPS Act 1985.
2. The brief facts of the case are that, on 19.03.2024, on the
basis of a secret information, the police officials, after complying
with the provisions of Section 42 of the Act of 1985, arranged a
blockade. At around 06:53 PM, the information specifically
pertaining to the present applicant was received, who was
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allegedly seen walking on the highway carrying a bag. Upon
search, 1.432 kg of MDMA was recovered from the possession of
the applicant. Prior to conducting the search, the applicant was
apprised of his rights under Section 50 of the Act of 1985, and the
requisite compliance was made. On the basis of the said recovery,
the FIR in question came to be lodged. After completion of
investigation, the charge-sheet has been filed and, as submitted
by learned counsel for the applicant, the matter is presently
pending consideration at the stage of framing of charges.
3. Learned counsel for the applicant primarily raises three
grounds. Firstly, he submits that similarly situated co-accused
Ashok, Adil Khan, Yuvraj Singh Sisodia, Shailendra @ Digvijay
Singh @ Digu, Yuvraj Singh, Dinesh and Bhagat Singh @ Pintu and
Shoib Mansuri have already been enlarged on bail by the
Coordinate Benches of this Court vide orders dated 09.05.2024,
21.10.2024, 03.12.2024, 27.01.2025, 04.03.2025, 20.06.2025
and 09.07.2025 passed in S.B. Criminal Misc. Bail Application Nos.
5090/2024 (Ashok v. State of Rajasthan), 9287/2024 (Adil Khan v.
State of Rajasthan), 7622/2024 (Yuvraj Singh Sisodia v. State of
Rajasthan), 15972/2024 (Shailendra @ Digvijay Singh @ Digu v.
State of Rajasthan), 2480/2025 (Yuvraj Singh v. State of
Rajasthan), 7298/2025 (Dinesh & Anr. v. State of Rajasthan) and
7933/2025 (Shoib Mansuri v. State of Rajasthan). He, therefore,
submits that on the ground of parity, the applicant also deserves
to be enlarged on bail.
3.1 Secondly, he submits that the applicant has remained in
custody for a considerable period i.e. since 19.03.2024, there are
43 prosecution witnesses and even the charges have not yet been
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framed by the learned Trial Court. He, therefore, submits that on
the ground of prolonged incarceration, the applicant deserves to
be enlarged on bail.
3.2 In support of his submissions, learned counsel places
reliance upon the judgments of the Hon’ble Apex Court in Union
of India v. K.A. Najeeb, (2021) 3 SCC 713 as well as Mohd.
Muslim @ Hussain v. State (NCT of Delhi), (2023) 18 SCC
166, while contending that even in cases under special statutes
like the UAPA and the NDPS Act, the statutory embargo would not
operate where the accused has undergone substantial
incarceration and the trial is not likely to conclude within a
reasonable time.
3.3 Thirdly, learned counsel submits that the FSL report is not
part of the record. Despite the same, the charge-sheet records a
definite conclusion that the substance recovered from the
applicant is MDMA. He, therefore, implores this Court to allow the
present bail application.
4. Per contra, learned Public Prosecutor opposes the bail
application and submits that the present case cannot be said to be
one of prolonged incarceration, inasmuch as the minimum
sentence prescribed is 10 years and the maximum sentence is 20
years, whereas the applicant has not even undergone
incarceration for half of the minimum prescribed sentence. He
further submits that, so far as the co-accused who have been
enlarged on bail are concerned, the Coordinate Benches have
specifically noticed that no recovery was effected from them and
that they were implicated only on the basis of the disclosure
statement of the present applicant, from whose conscious
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possession the contraband was recovered. He, therefore, prays for
dismissal of the present bail application.
5. Heard learned counsel for both sides and perused the
material available on record.
6. As regards the ground of parity, a perusal of the bail orders
passed in favour of the co-accused would reveal that the
consideration therein was that the said co-accused were
implicated only on the basis of the statement of the present
applicant and that no recovery had been effected from their
conscious possession. For the sake of convenience, the
observations made by the Coordinate bench of this Court, in one
of the bail orders, namely order dated 09.05.2024 passed in S.B.
Criminal Miscellaneous Bail Application No.5090/2024 (Ashok v.
State of Rajasthan), are reproduced hereunder:-
“Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that
methylene dioxy methamphetamine (MDMA) was recovered
from the conscious possession of the co-accused Ashok S/o
Sohanlal; the contraband (MDMA) was not recovered from
direct / conscious possession of the present petitioner; and
that the petitioner does not have any criminal antecedents.
This Court also prima facie finds that the prosecution has not
shown any apprehension of the petitioner involving himself in
the cases of similar nature or fleeing away from justice, in
case he is enlarged on bail. In view thereof, in the opinion of
this Court, the twin conditions enumerated in Section 37 of
NDPS Act are duly satisfied in the present case. Thus, without
expressing any opinion on merits/demerits of the case, this
Court is inclined to enlarge the petitioner on bail.”
6. The aforesaid aspect has also been taken into consideration
in all the other bail orders passed in favour of the co-accused,
whereas in the case of applicant, the contraband has been
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recovered from the conscious possession of the present applicant,
who is the main accused. The remaining accused were implicated
with the aid of Section 29 of the Act of 1985, which is not
applicable to the present applicant. Therefore, the question of
parity does not arise in the case at hand.
7. As regards the ground of prolonged incarceration, it is true
that in Union of India v. K.A. Najeeb, (supra), as well as Mohd.
Muslim @ Hussain v. State (NCT of Delhi), (supra), the
Hon’ble Apex Court has held that notwithstanding the stringent
provisions under the UAPA or Section 37 of the Act of 1985, bail
may be granted where the accused has undergone a substantial
part of the prescribed sentence. The relevant observation
made in paragraph 18 of the judgment in case of Union of India
K.A. Najeeb (surpa) is reproduced hereunder:-
“18. It is thus clear to us that the presence of statutory
restrictions like Section 43D (5) of UAPA perse does not oust
the ability of Constitutional Courts to grant bail on grounds of
violation of Part III of Page | 11 the Constitution. Indeed, both
the restrictions under a Statue as well as the powers
exercisable under Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of proceedings,
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 43D (5) of
UAPA being used as the sole metric for denial of bail or for
wholesale breach of constitutional right to speedy trial.
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[2026:RJ-JP:32787] (6 of 11) [CRLMB-10517/2025]7.1 Further, the relevant observation made in paragraphs
4, 16 and 18 of the judgment in case of Mohd. Muslim @
Hussain (supra), is reproduced as under:-
4.These issues have pivotal meaning to the facts of this case.
The appellant complains that his application for bail ought not
to have been rejected by the High Court, in the present case,
considering that he has suffered incarceration for over 7
years and the criminal trial has hardly reached the half-way
mark. The appellant is accused of committing offences
punishable under Sections 20, 25 and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereafter “the NDPS
Act“). His application under Section 439 read with Section 482
of the Criminal Procedure Code (hereafter “CrPC“), seeking
grant of regular bail, before the Delhi High Court, was denied
by the impugned judgment. Some other facts important to the
decision in this case, are that at the time of his arrest, the
appellant was 23 years. He was not found in possession of the
narcotic drug; other co-accused were.
16.In the most recent decision, Satender Kumar Antil v. CBI
prolonged incarceration and inordinate delay engaged the
attention of the Court, which considered the correct approach
towards bail, with respect to several enactments, including
Section 37 of the NDPS Act. The Court expressed the opinion
that Section 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 that 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
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period of imprisonment provided for the said offence under that
law.”] (which requires inter alia the accused to be enlarged on
bail if the trial is not concluded within specified periods) of the
Criminal Procedure Code, 1973 would apply:
“86. … We do not wish to deal with individual
enactments as each special Act has got an objective
behind it, followed by the rigour imposed. The general
principle governing delay would apply to these
categories also. To make it clear, the provision
contained in Section 436-A of the Code would apply to
the Special Acts also in the absence of any specific
provision. For example, the rigour as provided under
Section 37 of the NDPS Act would not come in the way
in such a case as we are dealing with the liberty of a
person. We do feel that more the rigour, the quicker
the adjudication ought to be. After all, in these types of
cases number of witnesses would be very less and
there may not be any justification for prolonging the
trial. Perhaps there is a need to comply with the
directions of this Court to expedite the process and also
a stricter compliance of Section 309 of the Code.”
18.It is an undisputed fact that two co-accused persons (who
also, were not present at the time of raid and from whom no
contraband was recovered) — the accused (Virender Singh alias
Beerey) who allegedly transferred money to the appellant’s
account as payment for the ganja, and the accused (Nepal
Yadav alias Tony Pahalwan) from whom the original insurance
papers and registration certificate of the car from which
contraband was seized, was recovered [As per the counter-
affidavit dated 21-2-2023 filed by the respondent State before
this Court.] — have both been enlarged on bail. The appellant
has been in custody for over 7 years and 4 months. The
progress of the trial has been at a snail’s pace : 30 witnesses
have been examined, whereas 34 more have to be examined.”
8. A perusal of the aforesaid judgments would reveal that in
Mohd. Muslim @ Hussain (supra), while referring to Section 436-A
of the Cr.P.C., the Hon’ble Apex Court has observed that where an
accused has undergone one-half of the minimum prescribed
sentence, the embargo contained under Section 37 of the Act of
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1985 would not operate with the same rigour and the accused
may be considered for grant of bail. However, in the present case,
the minimum sentence prescribed for the alleged offence is 10
years and the maximum sentence is 20 years. Admittedly, the
applicant has not even remained behind bars for more than two
years and four months, i.e. much less than five years, which is
one-half of the minimum prescribed sentence. Thus, the
judgments relied upon by learned counsel for the applicant are not
applicable to the facts of the present case.
9. Even otherwise, the Hon’ble Apex Court in the case of Union
of India vs. Vigin K. Varghese, 2025 SCC OnLine SC 2440,
while dealing with an identical issue of prolonged incarceration,
has held as under:
17. The High Court then, on the strength of those premises,
recorded a finding that there exist reasonable grounds to believe
that the applicant is not guilty of the alleged offence, treating
prolonged incarceration and likely delay as the justification for
bail. Such a finding is not a casual observation. It is the statutory
threshold under Section 37(1)(b)(ii) which would disentitle the
discretionary relief and grant of bail must necessarily rest on
careful appraisal of the material available. A conclusion of this
nature, if returned without addressing the prosecution’s
assertions of operative control and antecedent involvement, risks
trenching upon appreciation of evidence which would be in the
domain of trial court at first instance.
10. In Union of India vs. Namdeo Ashruba Nakade, 2025
SCC OnLine SC 3049, while dealing with the issue of long
incarceration, the Hon’ble Apex Court, held as under:
“11. In the present case, this Court finds that though the
Respondent-accused was in custody for one year four months and
charges have not been framed, yet the allegations are serious
inasmuch as not only is the recovery much in excess of the
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commercial quantity but the Respondent-accused allegedly got
the cavities ingeniously fabricated below the trailor to conceal the
contraband.”
11. Very recently, the Hon’ble Apex Court, in the case of State
of Punjab vs. Balraj Singh @ Billa, 2026 SCC OnLine SC
1058, has held that while dealing with bail applications involving
commercial quantities of narcotic drugs, the embargo under
Section 37 of the NDPS Act, 1985, has to be considered, and
satisfaction regarding the twin conditions laid down therein has to
be recorded. The Hon’ble Apex Court, while considering the period
of incarceration of 1 year and 7 months, has held as under:
“18. Upon consideration of the case of the respondent against the
twin conditions laid down in Section 37, we are of the view that
no case for bail is made out. There are antecedents involving
commission of offences of the very same nature under the NDPS
Act, therefore it cannot be said that he is not likely to commit
such an offence while on bail.
19. Moreover, the respondent has only undergone 1 year 7
months, and if found guilty a maximum sentence of twenty years
may be imposed upon him. Therefore, it cannot be said that he
has suffered incarceration for a long period, warranting
interference in view of Article 21 of the Constitution.
20. While this Court has recognized on several occasions that
prolonged incarceration warrants the grant of bail in view of
Article 21 of the Constitution, we have noticed that the
application thereof is not uniform. Moreover, there is no doubt
that what constitutes “prolonged incarceration” for the purposes
of bail, has not been expounded by this Court or the law of the
land.”
12. Again, in the case of State of Punjab vs. Sukhwinder
Singh @ Gora, 2026 SCC OnLine SC 671, an identical issue
came up for consideration before the Hon’ble Apex Court, wherein
it has been held as under:-
“10. The impugned order, on its own showing, does not record
the satisfaction mandated under Section 37(1)(b)(ii) of the(Uploaded on 20/07/2026 at 06:19:05 PM)
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[2026:RJ-JP:32787] (10 of 11) [CRLMB-10517/2025]NDPS Act. Far from recording such satisfaction, the High Court
has gone on to observe that ‘the rigours of Section 37 of the
NDPS Act can be diluted bearing in mind the right to a speedy
trial.’ Such an approach is plainly contrary to the settled law
laid down by this Court and deserves to be set aside on this
ground alone. The right to speedy trial, rooted in Article 21 of
the Constitution, is undoubtedly a precious Constitutional right.
That said, in matters governed by a special enactment such as
the NDPS Act, particularly where the recovery is of commercial
quantity, the said right under Article 21 must be exercised
within the framework of Section 37 and cannot be pressed into
service solely on the ground of delay to override it. The
constitutional right under Article 21 and the special provision of
law under Section 37, NDPS Act are to be read harmoniously
and not placed in opposition to each other. The High Court, by
failing to record its satisfaction on the twin conditions under
Section 37, has in this Court’s view, committed an error.”
13. Thus, the embargo under Section 37 of the Act of 1985 has
to be read harmoniously with Article 21 of the Constitution only in
cases of prolonged incarceration where the accused has
undergone a substantial part of the prescribed sentence, ordinarily
one-half of the minimum sentence prescribed. Such a situation
does not arise in the present case.
14. So far as the contention that the FSL report not being part of
the record is concerned, the same is a matter to be considered
during trial and cannot, by itself, be a ground to hold, at this
stage, that the applicant is not guilty of the alleged offence. More
particularly in view of the recovery of huge quantity of contraband
from the conscious possession of the applicant and in view of the
embargo contained under Section 37 of the Act of 1985, the
applicant has not been able to satisfy the twin conditions
prescribed therein and, therefore, is not entitled to the grant of
bail.
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15. Thus, no case for grant of bail is made out. Accordingly, the
present bail application is, dismissed. However, the learned Trial
Court is directed to expedite the trial proceedings.
(SANDEEP SHAH),J
4/Devraj Pandey/658
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