Gujarat High Court
Rafik Adam Sumra vs State Of Gujarat on 18 March, 2026
NEUTRAL CITATION
R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026
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Reserved On : 18/02/2026
Pronounced On : 18/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL) NO. 3010 of 2025
==================================================
RAFIK ADAM SUMRA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.I.H.SYED, SENIOR COUNSEL WITH MS SHREYA OJHA(14681) for the
Appellant(s) No. 1
MR. CHINTAN DAVE, APP for the Opponent(s)/Respondent(s) No. 1
MR ANKIT SHAH(6371) for the Opponent(s)/Respondent(s) No. 2
==================================================CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE D. M. VYASCAV ORDER
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)[1] This is an appeal preferred against the order dated
06.11.2025 passed in NIA Criminal Misc. Application No.61 of
2025 by the learned Sessions Court under Section 21 of the
National Investigation Agency Act, 2008 (hereinafter referred to
as “the NIA Act“), by which the Sessions Court refused to grant
regular bail to the appellant herein, who was arraigned as
accused No.2.
[2] On 12.08.2018, the Anti-Terrorism Squad (ATS) Police
Station, Ahmedabad, Gujarat registered Crime No.111-01/2018
for offences punishable under Sections 8(c), 21(c), 24, 25, 27A
and 29 of the Narcotic Drugs and Psychotropic Substances Act,
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1985 (hereinafter referred to as “the NDPS Act“) relating to the
seizure of 4.949 kgs. of heroin, which was in the possession of
Aziz Abdul Bhagad, accused No.1. It was alleged that heroin
was smuggled by Pakistani nationals in a Pakistani fishing
vessel and was delivered in Indian maritime waters to an Indian
vessel owned by accused No.1.
[3] The ATS, Gujarat thereafter arrested the present appellant
on 13.08.2018 along with accused No.1. The ATS, Gujarat also
arrested three other persons in relation to this seizure.
[4] On completion of the investigation, the ATS, Gujarat filed a
charge sheet on 07.09.2019.
[5] On 29.01.2020, the S.T.F., S.A.S. Nagar, Punjab registered
FIR No.20/2020 under Sections 21, 25, 27A and 29 of the NDPS
Act and under Section 30 of the Arms Act in relation to the
seizure of 8 kgs. of heroin from the possession of Sukhbir Singh
@ Happy. In this case, on completion of the investigation, a
charge sheet was filed on 11.06.2020 and 9 accused persons
were arrested.
[6] On 31.01.2020, the S.T.F., S.A.S. Nagar, Punjab registered
another FIR being No.23/2020 for offences under Sections 21,
25, 27A and 29 of the NDPS Act, relating to the seizure of 188.9
kgs. of heroin. This seizure was part of a consignment of 200
kgs. of heroin, which was smuggled from Pakistan to Gujarat
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and transported to Punjab, which was the subject matter of the
seizure by S.T.F., Punjab. On conclusion of investigation, a
charge sheet was also filed in this crime on 07.07.2020.
[7] On 29.06.2020, the Union of India, taking into
consideration that all the aforementioned three crimes were
part of the same offence, directed the NIA to investigate all
three crimes as provided under Section 8 of the NIA Act.
Accordingly, the NIA re-registered the case as RC 26/2020
NIA/DLI on 02.07.2020 and took over the investigation.
[8] On 29.06.2020, the Union of India transferred Crime
No.111-1/2018 registered by ATS, Police Station, Ahmedabad,
Gujarat to the NIA, and the NIA re-registered the case on
02.07.2020.
[9] On 07.08.2020, the Union of India transferred FIR
No.20/2020 which was registered by the S.T.F., S.A.S. Nagar,
Punjab to NIA Delhi.
[10] On 28.06.2021, the Union of India had transferred FIR
No.23/-2020 which was registered by the STF, Mohali to NIA.
After taking over the investigation, the NIA has filed as many as
8 supplementary charge sheets.
[11] The NIA thereafter proceeded to file Transfer Petition
(Criminal) Nos.487-488/2023 before the Hon’ble Supreme Court
seeking transfer of the Sessions Case registered pursuant to FIR
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No.20/2020 dated 29.01.2020 and the Sessions Case arising out
of FIR No.23/2020 dated 30.01.2020 to the NIA Court,
Ahmedabad. The Hon’ble Supreme Court, by order dated
30.09.2024, allowed the transfer petition and directed that the
Sections Cases pending before the Courts in Punjab be
transferred to the NIA Court at Ahmedabad.
[12] It is pertinent to state that the NIA Court at Ahmedabad
had framed charges on 18.07.2023 in the case pending before it
relating to the FIR registered by ATS, Ahmedabad, Gujarat.
Though charges were framed on 18.07.2023, the trial did not
commence immediately thereafter, obviously because the NIA
was seeking clubbing of all the three cases and transfer of all
the cases to the NIA Court, Ahmedabad.
[13] The appellant, who was arraigned as accused No.2, has
remained in custody since 13.08.2008. In other words, the
appellant has been in custody for the past 7 ½ years.
[14] In these cases, the NIA has stated that it wishes to
examine 180 witnesses and produce 173 documents to establish
the guilt of the accused.
[15] It is admitted, that, as of today, 46 witnesses have been
examined and there are still 134 witnesses are yet to be
examined.
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[16] Shri I. H. Syed, learned Senior counsel for the appellant
contended that there has been an inordinate delay in conduct of
the trial and there is definitely no possibility of the trial
concluding in the near future. He admitted that only 46
witnesses have been examined by the NIA since the framing of
charges in the year 2023 against the appellant and obviously the
examination of remaining 134 witnesses would consume an
enormous amount of time and the appellant cannot be subjected
to punitive detention for no fault of his. Learned senior counsel
submitted that prolonged incarceration due to delay in trial
would amount to a direct contravention of the right to a speedy
trial guaranteed under Article 21 of the Constitution of India,
and such a detenue would be entitled to be released on bail,
even if the special statute under which he has been charged
places a restrictive embargo on the grant of bail.
[17] Learned Senior counsel further submitted that
considerations for grant of bail prior to the commencement of
trial and the considerations for grant of bail due to a delay in
trial are markedly different and the usual ingredients that is
gravity of offence etc., cannot be strictly applied in case of a
prolonged delay in trial. He submitted that the only
consideration in a case where there is a delay in the conduct of
the trial would be the long incarceration and the possibility of a
further delay in the trial. He therefore submitted that the
appellant, who has been in custody for nearly 7 ½ years, would
be entitled to be released on bail forthwith. He further
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submitted that the delay in the conduct of the trial cannot be
attributed to the appellant in any way since the appellant had
not caused any impediments for the trial.
[18] Mr. Syed, learned Senior counsel for the appellant placed
reliance on the following citations in support of his case:-
(i) Union of India versus K.A.Najeeb reported in
(2021) 3 SCC 713.
(ii) Javed Gulam Nabi Shaikh versus State of
Maharashtra and another reported in (2024) 9 SCC
813.
(iii) Sheikh Javed Iqbal versus State of Uttar
Pradesh reported in (2024) 8 SCC 293.
(iv) Rajvirsinh @ Rajanlal Meghsinh Jat versus The
State of Gujarat passed in SLP (CRL) NO. 20889 OF
2025.
(v) Mohd Muslim @ Hussain v. State (NCT of Delhi)
passed in SLP (CRL) NO. 915 OF 2023.
(vi) Ankur Choudhary v. State of Madhya Pradesh
passed in SLP(Crl.).No.4648/2024.
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BUREAU OF INVESTIGATION passed in SLP (CRL)
NO. 2471-2472 OF 2025.
[19] Shri Ankit Shah, learned counsel appearing for the NIA
submitted that having regard to the fact that the case involved
seizure of enormous quantities of heroin and there was also
material to indicate that there was a larger international
conspiracy and the conspiracy was to commit terrorist acts, the
appellant would not be entitled to grant of bail. He sought to
contend that in the case that was registered in the year 2018
against the appellant, there is material to indicate that the
heroin seized were kept in the godown belonging to the
appellant and the appellant had transported a larger
consignment to Punjab, which resulted in the filing of the other
two FIRs and the entire conspiracy had come to light only when
the crime had been registered at Punjab. He submitted that it is
settled law that there was required to be a clear examination of
the material in NDPS cases and UAPA cases and only if the
Court arrives at a conclusion that the accused is prima facie not
guilty can the question of grant of bail arise. He submitted that
in the instant case, having regard to the enormity of evidence on
record, it is clear that the accused are in fact guilty and would
therefore not be entitled to bail.
[20] Shri Shah, learned counsel appearing from NIA placed
reliance on the following citations in support of his case:-
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(i) National Investigation Agency versus Zahoor
Ahmad Shah Watali reported in (2019) 5 SCC 1.
(ii) Gurwinder Singh versus State of Punjab and
another reported in (2024) 5 SCC 403.
(iii) Arsalan Feroze Ahenger versus National
Investigation Agency decided on 07.07.2025 passed by
the High Court of Delhi at New Delhi in CRL.A.1087/2024.
(iv) Mansoor Ali versus State of Himachal Pradesh
reported in 2025 SCC OnLine HP 4249.
(v) Mohd Abdul Rehman versus State NCT of Delhi
decided on 23.12.2024 passed by the High Court of Delhi
at New Delhi in CRL.A.280/2023.
(vi) Gulfisha Fatima versus State (Govt. of NCT of
Delhi) reported in 4 2026 INSC 2.
(vii) Ankush Vipan Kapoor versus National
Investigation Agency reported in 2024 INSC 986.
(viii) Central Bureau of Investigation versus Dayamoy
Mahato etc. reported in 2025 SCC OnLine SC 2775.
(ix) State of Kerala and others versus Rajesh and
others reported in (2020) 12 SCC 122.
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[21] It is also pertinent to state here that one of the co-accused,
namely Mantej Singh @ Micky Satinder Singh had also made an
application for grant of bail, but the same had been rejected,
and an appeal filed by him was also rejected by this Court on
19.02.2024. The said Mantej Singh @ Micky Satinder Singh had
preferred an SLP before the Hon’ble Supreme Court, and the
Hon’ble Supreme Court disposed of the same by directing the
Special Court to dispose of the matter as early as possible and
in any event within a period of one year from 18.09.2024. The
Hon’ble Supreme Court also stated that if, within the said
period of one year, the trial remained inconclusive, liberty was
reserved to Mantej Singh @ Micky Satinder Singh to move for
bail before the concerned Special Court.
[22] The appellant herein filed an application on 06.11.2025
seeking bail. However, the Sessions Court, on consideration of
the material before it, came to the conclusion that there was no
justification for granting bail and proceeded to reject the
application. As a consequence, the appellant has filed the
present appeal.
[23] In the light of the arguments advanced by the learned
counsels, the principal question which arises for consideration
in this appeal is whether the appellant would be entitled to
grant of bail on the ground that he has been in custody for
nearly 8 years and there has been an inordinate delay in the
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conduct of the trial, and furthermore, there are no prospects of
the trial being concluded in the near future.
[24] At the outset, it is to be stated here that the considerations
for grant of bail prior to the commencement of the trial would
stand on a completely different footing as compared to grant of
bail after the trial has commenced. Before the commencement
of the trial, the paramount objective would be prevent any
attempt to scuttle or weaken the investigation by making an
attempt to tinker with the evidence by corrupting the witnesses
either by intimidation or any such means. Before the
commencement of the trial, the possibility of the accused
absconding to prevent a comprehensive investigation would also
be present.
[25] However, in cases where the accused has been arrested
and has been in the custody of the law, i.e., either with the
Police or with the Court (judicial custody) during the entire
course of the investigation till its conclusion, and the charge has
been framed and the trial has commenced, the the
considerations for grant of bail would take a completely
different complexion.
[26] The right to a speedy trial, by a series of judgments
rendered by the Apex Court, is considered as a fundamental
right guaranteed to a person under Article 21 of the
Constitution of India. It is also stated in clear and explicit terms
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and reiterated over an over again by the Apex Court that this
constitutional right would override any statutory limitations
imposed for the grant of bail, whenever there is a delay in the
conduct of the trial so long as the person in custody is not
responsible for the delay in the trial.
[27] The legal principle that has been formulated is that a
person accused of an offense cannot be made to undergo a long
period of incarceration even before he is found guilty by the
Court after trial. In other words, in the guise of detaining him to
facilitate a trial, an accused cannot be subjected to punitive
detention.
[28] In recognition of this constitutional right, the Parliament
amended the Cr.P.C. and inserted Section 436-A1. This provision
stipulates the maximum period for which an under trial can be
detained and it explicitly states that in cases for which an
offence is not punishable by death, if the under trial prisoner
has been detained during the course of investigation and during
trial for a period extending to up to one half of the maximum
period of imprisonment, he would have to be released on bail.
Thus, the constitutional right of a speedy trail has been
recognized and embodied in Section 436-A of the Cr.P.C.
1 Maximum period for which an under trial can be detained and it explicitly states that in
cases for which an offence is not punishable by death, if the under trial prisoner has been
detained during the course of investigation and during trial for a period extending to up to
one half of the maximum period of imprisonment, he would have to be released on bail.
Thus, the constitutional right of a speedy trail has been recognized and embodied in
Section 436-A of the Cr.P.C.
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[29] It must be noticed here that in respect of offences under
the special statutes such as NDPS, UAPA, the parameters for
granting bail are made more restrictive as compared to the
crimes under the regular penal laws. These restrictive
parameters for grant of bail till the conclusion of the
investigation will however dissipate on charges being framed
and the trial having commenced and this is because of S. 36C
which makes the provisions of the CrPC applicable even in
respect of offences under the NDPS Act.
[30] Section 36-C of the NDPS Act stipulates that the
provisions of the Cr.P.C., including the provisions as to bail and
bonds, shall apply to the proceedings before a Special Court,
and for that purpose, the Special Court shall be deemed to be a
Court of the Session. This would, therefore, indicate that the
provisions of the Act or the Cr.P.C. would be applicable even in
respect of offences under the NDPS Act.
[31] As far as grant of bail for offences under the NDPS Act,
the same are governed by Section 37(1)(b) of the NDPS Act
which states that a person accused of an offence under Sections
19, 24 or 27A, and for offences involving commercial quantities,
shall not be released on bail unless the two conditions specified
therein are satisfied.
[32] Firstly, that the Public Prosecutor has been given an
opportunity to oppose the application for release on bail; and
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Secondly, where the Public Prosecutor opposes the application,
the Court should be satisfied that 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.
[33] It must be stated here that the consideration for grant of
bail as contained under Section 37 would be at the stage of
investigation i.e., at a stage where the trial is yet to commence.
The moment the trial commences, the mandate of Section 436A
would kick in by virtue of S.36-C of the NDPS Act and more
importantly the overarching principle of the right to a speedy
trial under Article 21A of the Constitution would stand
attracted.
[34] The Supreme Court in case of Mohd. Muslim alias
Hussain versus State (NCT of Delhi) reported in (2023) 18
SCC 166, on consideration of Section 37 of the NDPS Act and
also Section 436-A of the Cr.P.C, in relation to an offence under
the NDPS Act, has held as follows:-
“16. In the most recent decision, Satender Kumar Antil v. Central
Bureau of Investigation16 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 NDPS Act. The court
expressed the opinion that Section 436A (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:
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“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.”
[35] It is, therefore, clear that the prolonged incarceration
would be a factor to be taken into consideration when a person
in detention complains of inordinate delay in the trial even in
respect of commission of offences under the NDPS Act.
[36] It may also be relevant to state here that Section 309 of
the Cr.P.C., contains a statutory mandate that every trial shall
be continued from day to day until all the witnesses in
attendance have been examined. Section 309 of the Cr.P.C. also
seeks to, basically, incorporate the right to a speedy trial
guaranteed under Article 21 of the Constitution of India and
makes it expressly a statutory obligation.
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[37] Section 19 of the NIA Act2 also states that the trial under
the NIA Act of any offence by a Special Court shall be held on a
day-to-day basis on all working days, and it also goes on to
emphasize that the cases tried by the Special Court would have
precedence over the trial of any other case against the accused,
and shall be concluded in preference to the trial of such other
cases and, if necessary, the trial of other cases are to be kept in
abeyance.
[38] The conjoint reading of Section 309 of the Cr.P.C. and
Section 19 of the NIA Act would, basically, indicate that the
right of a speedy trial, which is declared as a fundamental right
under Article 21 of the Constitution of India, is reinforced by a
statutory mandate in respect of an offence prosecuted by the
NIA before the Special Court. There is, in fact, a right of
precedence for a trial also attached. These constitutional and
statutory provisions would, therefore, indicate that the right to a
speedy trial is not a mere wishful exercise but is required to be
necessarily complied as a legal obligation.
[39] Keeping these provisions in mind, and also the statutory
mandate of Section 436A of the Cr.P.C., the incarceration of the
petitioner, in the present case, will have to be considered.
2 The trial under the NIA Act of any offence by a Special Court shall be held on a day-to-
day basis on all working days, and it also goes on to emphasize that the cases tried by
the Special Court would have precedence over the trial of any other case against the
accused, and shall be concluded in preference to the trial of such other cases and, if
necessary, the trial of other cases are to be kept in abeyance.
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[40] As stated earlier, the petitioner has been in custody since
13.08.2018, i.e., for the past 7 ½ years. The NIA has listed a
total of 180 witnesses that it wishes to examine to establish the
guilt of the accused. However, out of the 180 witnesses cites, so
far, only 46 witnesses have been examined and there thus still
remains about 134 witnesses to be examined.
[41] Mr. Ankit Shah, learned counsel appearing for the NIA has
placed on record the Rojkam, which would indicate that the
accused has not sought for time and thereby attempted to delay
the trial in any way. In fact, the trial was not been conducted
only because of the repeated requests made by the NIA for
grant of an adjournment.
[42] The NIA, in fact, chose not to conduct the trial until all the
cases were consolidated and transferred to the Court at
Ahmedabad, and this would therefore indicate that the
petitioner has been in no way responsible for the delay in the
trial. Mr. Shah, learned counsel for the NIA, however, argued
that the gravity of the offence and the statutory constraints
imposed for the grant of bail would have to be considered. It is
also submitted that the prima facie indication of the guilt of the
accused would also have to be looked it for grant of bail.
[43] As already observed, the granting of bail arises in different
circumstances. The first instance where an accused can seek for
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bail is when he is arrested and produced before the competent
court. Secondly, the accused is conferred a right to be enlarged
on bail if the investigation is not concluded within the statutorily
prescribed timeline. In other words, as already stated above, the
considerations for grinding bail till the trial commences are
prescribed by the statutory provisions relating to grant of bail.
[44] However, once the investigation is completed, the final
report has been filed by the investigating authority, and the
concerned court has also proceeded to frame charges on the
basis of the material placed before it, the factors to be
considered for grant of bail stand completely changed. On the
charges being framed, the law presumes that the court applied
its mind to the materials placed before it and has come to the
conclusion that there was evidence for charging the accused
with the commission of a crime and he is required to be tried.
[45] However, once charges are framed, the statutory
provisions also mandate that the trial should be conducted as
expeditiously as possible, and the provisions in fact state that it
should proceed on a day-to-day basis. As far as the NIA Act is
concerned, as observed earlier, the trials get a precedence over
the other trials in respect of regular criminal cases, and there is
once again an emphasis on conducting the trial on a day-to-day
basis.
[46] In the background of this statutory mandate, once the
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charges are framed and the trial has commenced, the basic
requirement to consider grant of bail is to first ascertain
whether has been an inordinate delay in the conduct of trail and
thereafter examine the reason for the delay in trial while
considering the plea of bail. To put it differently, the only
consideration for considering the request of bail by an accused,
after the trial has been commenced, would be the delay in the
conclusion of the trial and the reasons for such delay.
[47] In a given case, if it is evident that the delay in conducting
the trial is not attributable to the accused and the delay can be
attributed only to the prosecution, then the judgments of the
Hon’ble Supreme Court such as Mohammed Muslim‘s case
cited above regarding prolonged incarceration entitling an
accused to bail would come into operation. In the light of this
legal position, the argument that the evidence against the
accused will have to be considered, even when there is an
inordinate delay in trial, cannot be accepted, at least in the
present case.
[48] Mr. Shah, learned counsel appearing for the NIA also
sought to place reliance in the case of Gulfisha Fatima (supra)
to contend that even in respect of a delay in trial, the material
against the accused will have to be examined. In Gulfisha
Fatima‘s (supra) case. It has to be stated here that in Gulfisha
Fatima‘s case, the trial was yet to commence and it was still at
the investigation stager. The judgment rendered in respect of a
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case where the trial was yet to commence, i.e., grant of bail at a
pre-trial stage would be wholly inapplicable to a case, such as
the instant vcase, where charges have been framed and the trial
has commenced and there has also been a prolonged delay in
the conclusion of the trial, during the course of which for a
period of more than 7 ½ years, the accused has still been in
custody. Therefore, the argument of the learned counsel for the
NIA cannot be accepted.
[49] In support of the above conclusion, we may notice the
following orders passed by the Hon’ble Apex Court in cases
relating to NDPS:-
(i) In the case of Ankur Chaudhary versus State of
Madhya Pradesh decided on 02.01.2024 in SLP (Criminal)
No.4648 of 2024, which was also a case in relation to offences
under the NDPS Act and where the accused was in custody for
more than 2 years. The Hon’ble Supreme Court has stated as
follows:-
“Now, on examination, the panch witnesses have not supported
the case of prosecution. On facts, we are not inclined to consider
the Investigation Officer as a panch witness. It is to observe that
failure to conclude the trial within a reasonable time resulting in
prolonged incarceration militates against the precious
fundamental right guaranteed under Article 21 of the
Constitution of India, and as such, conditional liberty overriding
the statutory embargo created under Section 37(1)(b) of the
NDPS Act may, in such circumstances, be considered.”
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(ii) In the case of Chintan Rajubhai Panseriya versus The
State of Maharashtra decided on 13.11.2025 in SLP
(Criminal) No.439 of 2026, in which also offences under the
NDPS Act were alleged against the accused and where the
accused was in custody for about 4 years. The Hon’ble Apex
Court, while granting bail, has observed as follows in paragraph
5:-
“5. We do not undermine the seriousness of the alleged crime.
We are mindful of the fact that the prosecution is for the offence
punishable under Narcotic Drugs and Psychotropic Substances,
Act, 1985. At the same time, we should not overlook the fact that
the petitioner is in judicial custody as an under-trial prisoner past
3 years and 6 months and prosecution intends to examine as
many as 159 witnesses. Examination of 159 witnesses or even
50% of the same is going to take a pretty long time. At times, we
wonder why prosecution wants to examine so many witnesses
and thereby prolong the trial and delay the same. We have
observed in number of orders that the prosecution should
examine important witnesses and try to establish its case. There
is no point in multiplying the witnesses on one and the same
issue.”
(iii) In the case of Rabi Prakash versus The State of Odisha
decided on 11.11.2022 in SLP (Criminal) No.4169 of 2023,
which also relates to offences under the NDPS Act and where
the accused was in custody for over 3 ½ years, in which only 1
out of 19 witnesses had been examined. The Hon’ble Supreme
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Court, while taking into consideration that the conclusion of the
trial would take some more time, has held as follows:-
“4. As regard to the twin conditions contained in Section 37 of
the NDPS Act, learned Counsel for the Respondent-State has
been duly heard. Thus, the 1st condition stands complied with.
So far as the 2nd condition re: formation of opinion as to whether
there are reasonable grounds to believe that the Petitioner is not
guilty, the same may not be formed at this stage when he has
already spent more than three and a half years in custody. The
prolonged incarceration, generally militates against the most
precious Fundamental Right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional liberty must
override the Statutory embargo created under Section 37(1)(b)
(ii) of the NDPS Act.”
[50] Though several other decisions were cited, in our view
only those decisions in which the Hon’ble Apex Court was
considering the delay in the conclusion of the trial in respect of
offences under the NDPS Act are required to be examined.
Accordingly, only those decisions are examined.
[51] To reiterate, since in the present case the appellant has
been in custody since 13.08.2018 i.e., for more than 7 ½ years
and there is no prospect of the trial being concluded in the near
future, as still about 134 witnesses are yet to be examined, a
case has been made out to enlarge the appellant on bail, subject
to the conditions that may be imposed by the trial court.
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[52] It is also hereby clarified that the order granting bail to
the appellant, who is the 2nd accused, is in the peculiar facts and
circumstances of the case, and this order should not be taken
into consideration in respect of requests for bail being made by
the other accused on the ground of parity, and each claim for
grant of bail will have to be examined on the merits of the
individual cases and the manner and cause for which the trial
has not been concluded.
[53] The present appeal is, therefore, allowed. The appellant is
ordered to be enlarged on bail, subject to the conditions that the
Trial court may deem necessary to impose.
(N.S.SANJAY GOWDA, J.)
(D. M. VYAS, J.)
DHARMENDRA KUMAR
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