2025 (4) TMI 1243 - HC - Indian Laws

Grant of Regular bail - recovery of substantial quantity of narcotics drugs - Applicant has sought bail on the grounds that he has been falsely implicated - HELD THAT - In the present case the accused Azeem is the real brother of Shahid Ahmad @ Qazi Wadood who allegedly sent contra-band to India. NCB/Prosecution has solely relied on the bank transaction between accused Azeem and Razi Haider Zaidi i.e. Rs. 36, 500/- on 16.06.2019 Rs. 35, 000/- on 22.06.2019 and Rs. 11, 500/- on 16.03.2022 to cite the involvement and role of the accused in the alleged conspiracy. Prima facie there is nothing on record to show that the money received by the Applicant on 16.03.2022 was tainted and proximate to the seizure of Heroine seized from Razi Haider 27.04.2022. Further there is financial transaction of accused Azeem with the wife of co-accused Deepak Khurana of Rs. 6 lakh which is explained as payment for purchase of a Honda City car. Therefore the character of these transactions and its connection with conspiracy of drug trafficking is a matter to be proved at stage of Trial. As per the record the petitioner has been in custody since 05.05.2022 and charges are yet to be framed in the matter. It is evident that trial will take a long time to conclude. There is no likelihood of the Applicant fleeing from justice as he has his business in India. Further the Chargesheet stands filed and no purpose would be served in keeping the Applicant under custody. It is opposite to refer to the decision of the Apex Court in Union of India v. K.A. Najeeb (2021) 3 SCC 713 wherein it was observed that courts are obligated to release the undertrial prisoners on bail if there is a delay in trial. Further it was observed that statutory restrictions do not exclude the discretion of Constitutional Courts to grant bail on the grounds of violation of Fundamental Rights enshrined in Part III of the Constitution of India. In the recent decision of Manish Sisodia v. Central Bureau of Investigation 2023 (11) TMI 63 - SUPREME COURT the Apex Court reiterated that that right of liberty guaranteed under Article 21 of the Constitution of India is a sacrosanct right which needs to be accepted even in cases where stringent provisions are incorporated through special laws. It was held that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that bail is the rule and refusal is an exception . Conclusion - The applicant is admitted to regular bail subject to fulfilment of conditions imposed. Bail application allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment include:

• Whether the Applicant is entitled to regular bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), given the recovery of commercial quantity of contraband and the stringent conditions imposed therein;
• The applicability and interpretation of the twin conditions under Section 37 NDPS Act for grant of bail, specifically the requirement that the Court must be satisfied there are reasonable grounds to believe the accused is not guilty and is unlikely to commit an offence while on bail;
• The evidentiary value of disclosure statements under Section 67 of the NDPS Act and their impact on bail considerations;
• The relevance of financial transactions alleged to connect the Applicant to the drug trafficking conspiracy and whether such transactions constitute sufficient grounds to deny bail;
• The principle of parity in bail applications vis-`a-vis co-accused persons who have been granted bail;
• The effect of delay in trial and prolonged incarceration on the right to bail under Article 21 of the Constitution of India;
• Whether the Applicant has demonstrated reasonable grounds to believe he is not guilty and will not commit further offences if released on bail;
• The sufficiency of the prosecution's case at the bail stage, including the nature of evidence and linkages to the Applicant.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Bail under Section 37 of the NDPS Act

The NDPS Act imposes stringent restrictions on grant of bail when commercial quantity of narcotics is involved. Section 37(1)(b) mandates that bail can only be granted if the Court is satisfied that there are reasonable grounds to believe the accused is not guilty and unlikely to commit an offence while on bail. The Court relied on authoritative precedents including Collector of Customs v. Ahmadalieva Nodira and State of Kerala v. Rajesh, which clarify that "reasonable grounds" mean more than prima facie grounds, requiring substantial probable cause to believe the accused is not guilty.

The Court emphasized the cumulative nature of these twin conditions and the high threshold for bail under this provision. The prosecution's case disclosed involvement of the Applicant in a drug trafficking syndicate, which engages the strict bail regime.

Issue 2: Evidentiary Value of Disclosure Statements under Section 67 NDPS Act

The prosecution's case against the Applicant heavily relied on disclosure statements made by co-accused persons under Section 67 of the NDPS Act. The Applicant contested the evidentiary value of such statements at the bail stage, citing precedent that such statements alone cannot form the basis for denying bail.

The Court acknowledged that while disclosure statements do not have conclusive evidentiary value, they form part of the totality of circumstances and investigation. Given the interconnected nature of the accused and the conspiracy, the statements contributed to the prima facie case against the Applicant, though ultimate determination would be at trial.

Issue 3: Alleged Financial Transactions and Connection to Drug Trafficking

The prosecution pointed to several financial transactions between the Applicant and co-accused persons, including sums of Rs. 36,500/-, Rs. 35,000/-, and Rs. 11,500/-, as well as a Rs. 6 lakh transaction explained by the Applicant as payment for a car purchase. The Court found no direct evidence that these transactions were tainted or proximate to the seizure of heroin, and held that the character and connection of these transactions to the alleged conspiracy require detailed examination at trial.

Issue 4: Parity with Co-accused Granted Bail

The Applicant sought bail on the ground of parity, noting that co-accused persons in related cases had been granted bail by the Court. The Court observed that parity is a relevant consideration but not decisive if the facts and evidence against the Applicant differ materially. Nonetheless, the bail granted to co-accused was factored into the overall assessment.

Issue 5: Delay in Trial and Right to Bail under Article 21

The Applicant had been in custody for nearly three years with charges yet to be framed. The Court referred to Supreme Court decisions including Union of India v. K.A. Najeeb and Manish Sisodia v. Central Bureau of Investigation, which emphasize the fundamental right to liberty under Article 21 and hold that prolonged pre-trial incarceration should not become punishment without trial. The Court recognized that statutory restrictions on bail do not oust the constitutional discretion to grant bail in cases of trial delay.

Issue 6: Overall Satisfaction of the Court on Bail Conditions

Considering the totality of the circumstances, including the nature of the offence, evidence on record, delay in trial, and the Applicant's personal circumstances (business roots, lack of prior criminal record), the Court found that the stringent conditions of Section 37 NDPS Act were not fully met but that the balance of justice favored bail with stringent conditions to ensure attendance and prevent interference with witnesses or evidence.

3. SIGNIFICANT HOLDINGS

The Court held:

"The limitations on granting of bail come in only when the question of granting bail arises on merits... The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence."

"The expression 'reasonable grounds' means something more than prima facie grounds... The High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

"The fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that 'bail is the rule and refusal is an exception'."

Core principles established include:

• The stringent twin conditions under Section 37 NDPS Act for bail require substantial probable cause to believe the accused is not guilty and will not reoffend;
• Disclosure statements under Section 67 NDPS Act have limited evidentiary value but can be considered in the totality of circumstances;
• Financial transactions alleged to connect accused to drug trafficking require detailed trial examination and cannot alone justify denial of bail;
• Delay in trial and prolonged custody invoke constitutional protections under Article 21, allowing courts discretion to grant bail despite statutory bars;
• Bail is the norm and refusal the exception, even under special statutes, when fundamental rights are at stake.

Final determination:

The Applicant was admitted to regular bail subject to stringent conditions including personal bond, surety, restrictions on travel, mandatory appearance, prohibition on contacting witnesses, and maintaining communication with the Investigating Officer. The Court explicitly stated that this bail order does not express any opinion on the merits of the case, which will be decided at trial.