Gujarat High Court
Aniskhan Abdulvahid Khan vs State Of Gujarat on 30 July, 2026
NEUTRAL CITATION
R/CR.MA/14500/2026 ORDER DATED: 30/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 14500 of 2026
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ANISKHAN ABDULVAHID KHAN
Versus
STATE OF GUJARAT
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Appearance:
MR GAJENDRA P BAGHEL(2968) for the Applicant(s) No. 1
MR ADITYA JADEJA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 30/07/2026
ORDER
1) RULE. Learned APP waives service of rule for the respondent-State.
2) The present application is filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) for regular bail in
connection with FIR being C.R. No. 11210015240037 of 2024
registered with DCB Police Station, Surat City, for the offence
under Sections 8(c), 22(c) and 29 of NDPS Act.
3) Learned advocate appearing on behalf of the applicant submits that
applicant is innocent and has been falsely implicated in the offence.
Investigation is over and chargesheet has been filed. He is in custody
since 04.10.2024. He is not named in the FIR but based on the
statement of the co-accused, he has been arraigned as an accused.
Allegation against the applicant is that, he is only supplier of the
contraband mephedrone and nothing was found from his conscious
possession. Co-accused are granted bail by coordinate Bench of this
Court and on the ground of parity also, applicant may be enlarged on
bail. It is respectfully prayed that the applicant be enlarged on regular
bail on such terms and conditions as this Hon’ble Court may deem fit
and proper.
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4) Learned APP appearing on behalf of the respondent-State has
opposed the present application and submitted that the applicant is
facing serious charges involving trafficking of narcotic drugs. It is
contended that when the accused No.1 Mohammad Tokir was
apprehended by the police, conscious possession of 197.42 Gms gms.
Mephedrone was found and upon interrogation, the said co-accused
disclosed that the said contraband was supplied by the present
applicant. Therefore, according to the prosecution, involvement of
the applicant is clearly revealed. Considering the gravity and
seriousness of the offence, learned APP submitted that the present
application does not deserve to be entertained and deserves to be
rejected.
5) Having heard learned counsel for the respective parties and perusing
the material placed on record, it appears that due to upcoming
LokSabha election, police personnel were patrolling in Surat City and
at that time, upon suspicion, the police caught accused No.1 and upon
search, 197.42 gms. Mephedrone was found from his possession.
During interrogation, he disclosed that said mephedone was supplied
by accused No.2 Rehan Shaikh and present applicant had supplied
the same to accused No.2 Rehan Shaikh. Further, the recovered
mephedrone was of commercial quantity. Thus, the applicant is facing
charges under Sections 22(c), 8(c) and 29 of NDPS Act.
6) It further reveals that the applicant is involved in supplying and
selling contraband mephedrone. The aforesaid facts are corroborated
by the statement of accused Nos.1 and 2. This circumstance, prima
facie, establishes a direct nexus between the applicant and the
narcotics trafficking racket.
7) Further, the applicant is also involved in three more offence of similar
nature registered at Police Stations at Surat City. As the applicant
having similar nature of past antecedents, it is revealed that the
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applicant/accused is habitual in committing such offences and is
involved in drug trafficking. During the course of investigation, it has
been revealed that the applicant/accused, from time to time ordered
and used to supply drugs in market. Thereby, the youth of society are
being pushed into drug addiction.
8) This is not a case merely based on the statement of the co-accused,
applicant is arrested, but CDR and other evidence also collected
during investigation. Hence, prima facie involvement of applicant in
aid of Section 29 of the NDPS Act reveals. Section 29 of the Act reads
as under:-
“29. Punishment for abetment and criminal conspiracy. (1) Whoever abets,
or is a party to a criminal conspiracy to commit, an offence punishable under
this Chapter, shall, whether such offence be or be not committed in
consequence of such abetment or in pursuance of such criminal conspiracy,
and notwithstanding anything contained in section 116 of the Indian Penal
Code (45 of 1860), be punishable with the punishment provided for the
offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence,
within the meaning of this section, who, in India, abets or is a party to the
criminal conspiracy to the commission of any act in a place without and
beyond India which–
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or
psychotropic substances having all the legal conditions required to constitute
it such an offence the same as or analogous to the legal conditions required to
constitute it an offence punishable under this Chapter, if committed within
India.”
In the case of Union of India v. Nawaz Khan reported in (2021)
10 SCC 100 (3 Judges’ Bench), the Hon’ble Supreme Court has
elaborately discussed the test which the High Court should adopt
while granting bail, “reasonable grounds to believe”, “conscious
possession” of contraband and principles for ascertaining the same
have been summarized. Merely the contraband was not in conscious
possession of present applicant does not absolve him of the level of
scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. The term
“possession” could mean “physical possession” with animus; custody
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over the prohibited substances with animus; exercise of dominion
and control as a result of concealment; or personal knowledge as to
the existence of the contraband and the intention based on such
knowledge. Herein, applicant secretly supplying the contraband
mefedrone drugs and he was in touch with the co-accused.
9) Even, from the bare perusal of the investigation papers, it appears
that though the present applicant was not found in conscious
possession of the contraband, in view of the law laid down by the
Hon’ble Supreme Court in the case of Nawaz Khan (Supra), as the
applicant secretly supplying the contraband drugs and was connected
with the co-accused from whose premises 197.42 gms. Mephedrone
worth Rs.19,74,200/- was seized. The said contraband substance
mephedrone was supplied to the said accused by the present
applicant, which establishes the link between the accused.
Considering the rigors of Section 37 of the NDPS Act, it is very
difficult to presume that if the applicant is released on bail, then he
would not involve in commission of similar type of offence. At this
stage, it is apposite to refer to the decision of the Hon’ble Supreme
Court in the case of State of Kerala etc. vs. Rajesh etc. reported in
AIR 2020 SC 721, wherein considering the provisions of Section 37(1)
(b)(ii) of the NDPS Act, it has been held that since the offence
involves recovery of the narcotic drug in excess of its commercial
quantity, the Court is required to record its satisfaction that there are
reasonable grounds for believing that the applicant is not guilty of
such offence and that the applicant is not likely to commit any
offence while on bail and the Court is required to record a finding
mandated under Section 37 of the NDPS Act which is a sine qua non
for grant of bail to the accused under the NDPS Act.
10)Since the case involves commercial quantity of contraband, rigors of
Section 37(1)(b) of the NDPS Act are attracted. Before granting bail,
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the Court must be satisfied that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence and
that he is not likely to commit any offence while on bail. Both these
conditions are mandatory. In the present case, having regard to the
material collected during the investigation, the applicant’s
knowledge of the transaction, and his alleged role in supply of the
contraband, this Court is not satisfied that the twin conditions
prescribed under Section 37 are fulfilled. Therefore, this is not a fit
case for exercising discretion in favour of the applicant. It is also not a
case where the applicant has been implicated solely on the basis of
statements of co-accused recorded under Section 67 of the NDPS
Act. The material on record prima facie indicates that the applicant
played an active role in supplying the contraband and coordinated
with the co-accused, thereby demonstrating conscious involvement in
the alleged offence. In this regard, reference may be made to the
decisions of the Hon’ble Supreme Court in the cases of Union of India
v. Vigin K. Vergese, reported in 2025 INSC 1316 and Union of India v.
Namdev, reported in 2025 LiveLaw (SC) 109, wherein it has been
observed that in cases involving commercial quantity of narcotic
substances, grant of bail is an exception and refusal of bail is the rule.
The Court must interpret the provisions of the NDPS Act in a manner
that advances its object and purpose and not in a manner that
frustrates them. Prima facie, the material on record indicates that the
applicant was involved in an organized network engaged in drug
trafficking. Consequently, no ground is made out for relaxing the
mandatory requirements of Section 37 of the NDPS Act. Further, in
view of Sections 29 and 37 of the NDPS Act, and having regard to the
principles laid down by the Hon’ble Supreme Court in State of
Punjab v. Balraj Singh @ Billa, reported in 2026 INSC 618, mere
delay in trial cannot by itself be a ground for granting bail when the
offence involves commercial quantity and the prima facie
involvement of the accused is evident from the record.
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11)A Liberal approach in the matter of bail under the NDPS Act is
uncalled for. Section 37 of the NDPS Act starts with a non-obstante
clause and therefore, the provisions of Section 437/439 of the Code
of Criminal Procedure would not be applicable with regard to a
person accused of an offence punishable under Section 19 or Section
24 or Section 27A and also for offences involving commercial quantity
of contraband. The words “reasonable grounds” also appear in clause
(i) of Section 437 of Cr.P.C. but the authority given to a High Court or
a Court of Session under clause (a) of Section 439 permitting release
on bail of any person accused of an offence would be curtailed in
view of the stringent provision of Section 37(1)(b)(ii) of the NDPS Act.
The limitations prescribed under the NDPS Act on granting of bail are
in addition to the limitations under Cr.P.C. or any other law for the
time being in force. It is further contended that while considering an
application for bail with reference to Section 37 of the NDPS Act, the
Court is not called upon to record a finding of not guilty. With
reference to the phrase “reasonable grounds for believing”.
12)Moreover, other aspect to be borne in mind is that the liberty of a
citizen has got to be balanced with the interest of the society. In
cases where narcotic drugs and psychotropic substances are involved,
the accused would indulge in activities which are lethal to the society.
Therefore, it would certainly be in the interest of the society to keep
such persons behind bars during the pendency of the proceedings
before the court that the organised activities of the underworld and
the clandestine smuggling of narcotic drugs and psychotropic
substances into this country and illegal trafficking in such drugs and
substances have led to drug addiction among a sizeable section of
the public, particularly the adolescents and students of both sexes
and the menace has assumed serious and alarming proportions in the
recent years.
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13)The seriousness of cases under the NDPS Act have to be viewed like
this that in a murder case, the accused commits murder of one or two
persons, while those persons who are dealing in narcotic drugs are
instrumental in causing death or in inflicting death-blow to a number
of innocent young victims, who are vulnerable: it causes deleterious
effects and deadly impact on the society, that the organised activities
of the underworld and the clandestine smuggling of narcotic drugs
and psychotropic substances into this country and illegal trafficking in
such drugs and substances have led to drug addiction among a
sizeable section of the public, particularly the adolescents and
students of both sexes and the menace has assumed serious and
alarming proportions in the recent years. Therefore, in order to
effectively control and eradicate this proliferating and booming
devastating menace, causing deleterious effects and deadly impact
on the society as a whole, the Parliament in its wisdom, has made
effective provisions by introducing this Special provisions under the
Act.
14)So far learned counsel for the applicant has submitted that the
applicant is in jail since 04.10.2024 and therefore, on the ground of
delay in trial, applicant may be enlarged on bail. In this regard,
reference is required to be made on the decision of Hon’ble Supreme
Court in the case of State of Punjab Vs. Sukhwinder Singh @ Gora, in
2026 INSC 411, wherein the Hon’ble Supreme Court held that the
constitutional right to a speedy trial under Article 21 cannot
unilaterally dilute or bypass the mandatory statutory twin conditions
for bail under Section 37 of the NDPS Act, 1985.
15)The Court while considering the application for bail with reference to
Section 37 of the Act is not called upon to record a finding of not
guilty. It is for the limited purpose essentially confined to the
question of releasing the accused on bail that the Court is called upon
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to see if there are reasonable grounds for believing that the accused
is not guilty and records its satisfaction about the existence of such
grounds. But the Court has not to consider the matter as if it is
pronouncing a judgment of acquittal and recording a finding of not
guilty. in the case of Babua v. State of Orissa, Hon’ble Apex Court
has been pleased to held that:
“3. In view of Section 37(1)(b) of the Act unless there are reasonable
grounds for believing that the accused is not guilty of such offence and
that he is not likely to commit any offence while on bail alone will
entitle him to a bail. In the present case, the petitioner attempted to
secure bail on various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)(b) of the
Act. At this stage of the case all that could be seen is whether the
statements made on behalf of the prosecution witnesses, if believable,
would result in conviction of the petitioner or not. At this juncture, we
cannot say that the accused is not guilty of the offence if the
allegations made in the charge are established. Nor can we say that
the evidence having not been completely adduced before the Court
that there are no grounds to hold that he is not guilty of such offence.
The other aspect to be borne in mind is that the liberty of a citizen has
got to be balanced with the interest of the society. In cases where
narcotic drugs and psychotropic substances are involved, the accused
would indulge in activities which are lethal to the society. Therefore, it
would certainly be in the interest of the society to keep such persons
behind bars during the pendency of the proceedings before the court,
and the validity of Section 37(1)(b) having been upheld, we cannot
take any other view.”
Further, in the present case, the applicant is found in illegal
trafficking of mephedrone drug and therefore, considering the rigors
of Section 37 of the NDPS Act and the law laid down by the Hon’ble
Supreme Court in the case of Bhawani Singh vs. State of Rajasthan
reported in 2022 SCC OnLine SC 1991 as well as in the case of State
of Meghalaya vs. Lalrintluanga Sailo and Another reported in 2024
SCC OnLine SC 1751, State by the Inspector of Police Vs. B. Ramu,
Union of India Vs. Namdeo Ashruba Nakade and Union of India Vs.
Ajay Kumar Singh, the applicant is not entitled for bail.
(15) In view of the above, there being no merits in the present application,
same is hereby dismissed. It is made clear that the observations made
in the present order are tentative in nature. The learned trial Court
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shall expedite the trial on its own merits, without being influenced by
the observations made in this order, and shall conclude the
proceedings within 10 weeks from the date of receipt of this order.
The Official Counsel/Chief Legal Aid shall provide an advocate from
the Legal Services Authority to the applicant, in case the applicant has
not engaged any advocate. The applicant is directed to cooperate
with the learned trial Court to cooperate in expeditious trial. The Rule
is hereby discharged.
(HASMUKH D. SUTHAR,J)
SUCHIT
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