Procedural Lapses and Prolonged Incarceration Justify Bail Under NDPS Act: Bombay High Court

Prolonged Detention Without Trial and Non-Compliance with NDPS Act Safeguards Violates Article 21 - Bombay High Court granted bail to the applicant, accused of possessing 1300 grams of charas, under the stringent Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court ruled in favor of the applicant, citing procedural lapses in compliance with NDPS safeguards, prolonged incarceration without trial, and significant doubts over the prosecution’s case.

The applicant had been in custody for nearly three years, and the Court observed that such prolonged detention violated his fundamental right to a speedy trial under Article 21 of the Constitution. Additionally, procedural discrepancies in the investigation under Sections 42, 50, 52, and 52-A of the NDPS Act undermined the credibility of the prosecution.

The applicant, Amey Sanjay Jadhav, was arrested on 31 January 2022 for allegedly carrying 1300 grams of charas while riding as a pillion passenger on a motorcycle. His co-accused, Pranit Khaire, was found in possession of 700 grams of charas in a shoulder bag. Both were charged under Sections 8(c), 20(c), and 29 of the NDPS Act for carrying commercial quantities of the contraband.

The applicant sought bail, citing procedural lapses, his prolonged detention, and parity with co-accused Nos. 2 (the motorcycle rider) and 3 (the supplier), who had already been granted bail. The prosecution opposed the application, arguing that the applicant was found in possession of a commercial quantity and that the rigors of Section 37 of the NDPS Act applied.

The Court noted significant lapses in the investigation, which cast doubt on the prosecution’s case:

• Non-compliance with Sections 42 and 50 of the NDPS Act: The raid was conducted at night without proper authorization, and the applicant was not informed of his right to be searched in the presence of a Magistrate or Gazetted Officer.

• Delay in Recording Seizure: While the seizure occurred on 31 January 2022, it was not recorded in the daily diary until 02 February 2022, raising questions about the integrity of the evidence.

• Inventory Preparation: The inventory panchanama, required to be promptly prepared under Section 52-A, was delayed by 33 days. Moreover, the witnesses present during the seizure were different from those present during the preparation of the inventory, further undermining the reliability of the prosecution’s case.

The Court found the claim that the applicant carried 1300 grams of charas in a polythene bag in his right hand while riding as a pillion passenger implausible. It stated:
"It is difficult to fathom why the accused would carry contraband openly in his hand when the co-accused carried it concealed in a shoulder bag."

The Court emphasized that the applicant had been incarcerated for 2 years, 11 months, and 5 days without the trial even commencing. Relying on precedents like Rabi Prakash v. State of Odisha (2023 SCC OnLine SC 1109), it reiterated that prolonged detention without trial violates the fundamental right to life and liberty under Article 21 of the Constitution.

The Court noted that co-accused Nos. 2 (motorcycle rider) and 3 (supplier) had already been granted bail. Applying the principle of parity, the Court observed that the applicant’s case was similar, if not weaker, as the motorcycle and shoulder bag belonged to co-accused No. 2.

Compliance with Section 37 of the NDPS Act

The Court held that the twin conditions under Section 37(1)(b) of the NDPS Act were satisfied:

1. The public prosecutor was heard.

2. Prima facie, there were reasonable grounds to believe that the applicant was not guilty, given the procedural lapses and absence of corroborative evidence. Furthermore, the applicant had no prior criminal record, making it unlikely that he would reoffend if released on bail.

The Court granted bail to the applicant, subject to conditions to ensure his cooperation with the investigation and attendance during the trial. It emphasized that its observations were prima facie and would not prejudice the trial.

This judgment reaffirms the principle that procedural safeguards under the NDPS Act are mandatory and any deviation undermines the prosecution’s case. It also underscores the judiciary's responsibility to balance statutory rigors with constitutional rights, especially in cases of prolonged incarceration.

By granting bail, the Court emphasized that the right to a speedy trial cannot be sacrificed even in cases involving stringent laws like the NDPS Act.

Date of Decision: 03 January 2025