Court’s Decision
The Bombay High Court, through Justice Amit Borkar, rejected a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, for offences under Sections 8(c), 22(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court observed:
“In the larger interest of society and in keeping with the object of the NDPS Act to curb the menace of drug trafficking, personal liberty must yield to public interest.”
The Court held that since 500 grams of Mephedrone — a commercial quantity — was recovered from the applicant’s conscious possession, the rigours of Section 37 of the NDPS Act were attracted. The applicant failed to satisfy the twin mandatory conditions for bail, namely: (i) reasonable grounds to believe he is not guilty, and (ii) that he will not commit an offence while on bail.
Facts
The Anti-Narcotics Cell, Navi Mumbai, received specific intelligence that the applicant would arrive at Pendhar Bridge Phata to sell Mephedrone. A team was deployed after recording information under Section 42(2) of the NDPS Act. On arrival, the applicant was intercepted, informed of his rights under Section 50, and searched in the presence of panch witnesses.
From his pant pocket, police recovered a plastic pouch containing 500 grams of Mephedrone, along with a weighing machine, small plastic bags, and a mobile phone. The contraband was sealed, labeled, and produced before the Judicial Magistrate, Panvel, who verified and certified the inventory under Section 52(A) of the NDPS Act.
The sample was sent to the Forensic Science Laboratory (FSL), which confirmed the presence of Mephedrone (4-Methylmethcathinone) and Methamphetamine. The applicant was arrested and charged with drug trafficking.
Issues
- Whether the applicant was entitled to bail under Section 37 of the NDPS Act despite seizure of a commercial quantity of narcotic drugs.
- Whether alleged procedural lapses such as delay in sending samples, differences in seals, and absence of field tests could vitiate the prosecution case at the bail stage.
- Whether previous criminal antecedents could be a factor in denying bail under the NDPS Act.
Petitioner’s Arguments
Counsel for the applicant contended that the prosecution had failed to produce a valid Chemical Analyzer’s report at the time of filing, and that discrepancies existed in the sealing and forwarding process. The seal on the Section 52(A)(3) certificate allegedly differed from that on the forwarding form sent to the FSL, raising suspicion of tampering.
It was also argued that there was a delay in sending the sample (sent on 11 March 2024 after seizure on 21 February 2024), and the actual quantity might be less than the commercial quantity, which would dilute the rigour of Section 37. The applicant claimed that his previous criminal antecedents could not justify denial of bail and that the alleged contraband recovery was unreliable, as the mobile phone location placed him elsewhere at the time of arrest.
Respondent’s Arguments
The Additional Public Prosecutor opposed bail, emphasizing that the seizure was conducted in compliance with the NDPS Act, witnessed by panchas, and verified by a Magistrate. The FSL report confirmed the presence of Mephedrone and Methamphetamine, and photographs were taken during certification under Section 52(A).
It was submitted that the applicant was involved in a drug trafficking network, procuring contraband from a co-accused in Karnataka and reselling it for profit. Witness statements corroborated his role, and his three prior NDPS cases (2021, 2023, and one earlier) indicated habitual involvement.
Reliance was placed on the Supreme Court ruling in Narcotics Control Bureau v. Kashif (2024) 11 SCC 372, to argue that minor delays or procedural lapses do not vitiate compliance under Section 52(A) and cannot be grounds for bail when substantive compliance is evident.
Analysis of the Law
The Court discussed the strict bail parameters under Section 37 of the NDPS Act, observing that offences involving commercial quantities require the Court’s satisfaction of two mandatory conditions — (i) the accused is not prima facie guilty, and (ii) he is unlikely to reoffend while on bail.
Justice Borkar underscored that the presumption under Section 54 of the NDPS Act squarely applies once possession is proved, shifting the burden to the accused to explain such possession. Mere denial or absence of field tests is insufficient to rebut this presumption.
The Court also reiterated the legislative intent behind Sections 52 and 52(A) — ensuring transparency and safeguarding both prosecution and defence from allegations of tampering. In this case, the entire chain of custody — from seizure, sealing, certification by the Magistrate, to FSL testing — was held intact, ensuring procedural integrity.
Precedent Analysis
The Court relied extensively on the following judgments:
- Narcotics Control Bureau v. Kashif (2024) 11 SCC 372
Held that minor delays or procedural lapses in forwarding samples to the FSL or certifying under Section 52(A) do not vitiate proceedings if the core statutory safeguards are complied with. - Union of India v. Mohanlal & Anr. (2016) 3 SCC 379 (referred conceptually)
Recognized that Section 52(A) ensures accountability in handling narcotics and the importance of Magistrate-certified inventories. - Section 37 and 54 NDPS Act
The Court reiterated that these provisions create a statutory presumption against the accused and restrict bail for commercial quantities.
The High Court emphasized that judicial discretion in NDPS cases must be exercised with restraint in light of these binding precedents.
Court’s Reasoning
Justice Borkar noted that the FSL report conclusively confirmed the presence of Mephedrone and Methamphetamine, establishing the contraband’s identity and quantity. The recovery of 500 grams — a commercial quantity — triggered the statutory bar on bail under Section 37.
He observed that the applicant’s arguments regarding discrepancies in seals and delay were minor technicalities that could not outweigh clear documentary and scientific evidence. The Court stressed that “minor procedural irregularities which do not cause prejudice to the accused cannot invalidate an otherwise lawful seizure.”
Further, the Court took cognizance of the applicant’s past criminal conduct, noting that repeated involvement in similar offences indicated a continuing tendency toward drug-related crimes, defeating the condition that the accused is not likely to reoffend.
The Court held that field testing is not mandatory, as the final proof lies in the Chemical Analyzer’s report, which is admissible under Section 293 Cr.P.C. and was duly corroborated by seizure panchanama and inventory.
Conclusion
The Court held that the applicant failed to satisfy the mandatory twin conditions of Section 37 and that no exceptional circumstances existed to justify departure from the statutory bar.
Justice Borkar concluded:
“Drug trafficking is not an isolated act. It has wide-ranging social and economic consequences. It destroys families, endangers public health, and undermines law and order.”
Accordingly, the Court rejected the bail application, holding that personal liberty must yield to public interest where narcotic trafficking is involved, and that statutory compliance and evidence on record prima facie established guilt.
Implications
This judgment reinforces that:
- NDPS bail laws remain stringent, especially for commercial quantities.
- Courts will not entertain technical discrepancies when procedural compliance and scientific corroboration exist.
- Repeated offenders face heightened scrutiny, as antecedents influence satisfaction under Section 37.
- The public interest in combating narcotics prevails over individual liberty under Article 21 when prima facie culpability is established.
It also underscores the judiciary’s consistent approach — balancing personal liberty with societal safety in NDPS cases.
