1. Court’s decision
The Bombay High Court has rejected the bail application of a foreign national arrested with 460 grams of Mephedrone (MD), holding that the stringent twin conditions under Section 37 of the Narcotic Drugs and Psychotropic Substances Act were not satisfied. The Court found that the recovery constituted a commercial quantity and there existed no material to conclude that the applicant was not guilty. The Court also held that alleged procedural lapses regarding compliance with Sections 42 and 50 were not borne out from the record. Additionally, the applicant’s expired visa and her status as an unauthorized resident weighed against bail, as her presence for trial could not be guaranteed. Accordingly, bail was rejected.
2. Facts
The Narcotics Control authorities received intelligence on 31 December 2022 about narcotics being traded in Mumbai. During patrolling, officials detained two men in suspicious circumstances, recovering 40 grams and 110 grams of MD from them. One of the arrested individuals disclosed that he had procured 150 grams of MD from a woman identified as the applicant. In the early hours of 1 January 2023, the police traced and intercepted the applicant, who allegedly gave evasive answers. She was searched in accordance with recorded procedures and 460 grams of MD was recovered from her jacket pocket. She was arrested the same day. Her bail plea before the Special NDPS Court was rejected in March 2025, leading to the present application.
3. Issues
The High Court was required to determine whether, despite Section 37 of the NDPS Act, the applicant could be released on bail. The main issues were:
(1) Whether the prosecution complied with mandatory requirements under Section 42 and Section 50;
(2) Whether procedural infirmities created reasonable grounds to believe the applicant was not guilty;
(3) Whether continued incarceration violated constitutional principles of personal liberty;
(4) Whether her expired visa and foreign nationality increased the risk of absconding;
(5) Whether the stringent statutory threshold for bail in commercial quantity cases was met.
4. Petitioner’s arguments
The applicant’s counsel argued that the entire investigation suffered from serious procedural violations that vitiated the prosecution case. He submitted that Section 42 was not complied with, as the alleged information received by officers was neither properly recorded nor forwarded in accordance with statutory requirements. He further argued that Section 50 was breached because her personal search was conducted by officers who were allegedly not authorized, and the absence of signatures of panch witnesses on the Section 50 communication undermined the validity of the search. He highlighted the absence of call detail records, financial trails, or WhatsApp chats establishing a link between the applicant and co-accused. The applicant had already spent over two years in custody and sought bail on the strength of long incarceration. Counsel relied on Supreme Court judgments emphasising scrutiny of procedural compliance at the bail stage.
5. Respondent’s arguments
The State contended that every statutory safeguard was meticulously followed. It pointed to the written note prepared by the officer summarizing the intelligence and forwarded to the superior officer, arguing that this evidenced compliance with Section 42. Panchanamas, station diary entries, and contemporaneous records were relied upon to demonstrate that the applicant’s apprehension and the subsequent arrest were part of a continuous operation. The State submitted that Section 50 was duly complied with because the applicant voluntarily wrote that she had “no objection” to being searched by the police, in the presence of a lady officer and a lady panch. It was argued that the applicant’s expired visa made her a definite flight risk and that commercial quantity involvement precluded bail unless Section 37 conditions were satisfied—which, it argued, they were not.
6. Analysis of the law
The Court reiterated that Section 37 imposes extraordinary restrictions on bail in cases involving commercial quantities. The Court stressed that it must be satisfied on two counts: (i) reasonable grounds for believing the accused is not guilty; and (ii) the accused is unlikely to commit an offence while on bail. These conditions are cumulative and not disjunctive. The Court examined compliance with Section 42 and Section 50 in detail. It found record evidence—including written communication by the officer, station diary extracts at 4:30 a.m., and sequential panchanamas—to demonstrate that the procedural steps required under Section 42 had been met. As to Section 50, the Court noted the applicant’s written consent, accompanied by the signatures of police officials and her own, and held that the absence of panch signatures on the Section 50 letter did not vitiate compliance, as the statute does not mandate such countersigning.
7. Precedent analysis
The Court considered Sarija Banu (Supreme Court), which held that alleged violations of Section 42 must be scrutinized at the bail stage. Applying that principle, the Court examined compliance but found none of the alleged violations substantiated. The Court then examined Aarif Akram Singh Shaikh, a coordinate bench decision, but distinguished it based on materially different factual circumstances. The Court also relied on Collector of Customs v. Ahmadalieva Nodira, wherein the Supreme Court clarified that “reasonable grounds” under Section 37 means more than prima facie grounds and requires substantial material showing innocence. Guided by this stringent standard, the Court found no such material in the present case. The precedents, read together, guided the Court toward a denial of bail.
8. Court’s reasoning
The Court held that procedural compliance was adequately demonstrated and the alleged lapses did not create any reasonable doubt in favour of the applicant. The recovery of 460 grams of MD from the applicant’s possession, coupled with the disclosure of the co-accused implicating her as a supplier, strongly indicated involvement in the narcotics network. The Court emphasised that commercial quantity offences have severe societal impact and cannot be treated lightly. The expired visa heightened the likelihood of the applicant absconding, undermining the possibility of securing her presence at trial. The Court also declined to accept long incarceration as a ground, noting that the charges were framed and trial commencement was imminent. In the absence of reasonable grounds to believe she was not guilty, Section 37 barred release.
9. Conclusion
The High Court refused bail, holding that the applicant failed to satisfy the stringent twin conditions under Section 37. The record exhibited compliance with Sections 42 and 50, and the quantity recovered constituted a commercial quantity. No exceptional circumstances justified overriding the legislative bar. The applicant’s immigration violation further strengthened the apprehension of flight. The Court made clear that its observations were prima facie and restricted to the bail stage, and the trial court must independently evaluate the evidence.
10. Implications
This ruling reinforces the extremely high threshold for securing bail in NDPS cases involving commercial quantities. It underscores that alleged procedural defects will not automatically translate into bail unless they create substantial doubt regarding guilt. The judgment also illustrates the judiciary’s increasing sensitivity to flight risks posed by foreign nationals with expired visas. Going forward, this decision strengthens prosecutorial positions in narcotics cases where compliance is well documented and highlights the judiciary’s strict adherence to Section 37’s mandate. Defence strategies in NDPS bail matters will require far more substantive material demonstrating innocence or procedural illegality than mere technical objections.
CASE LAW REFERENCES
1. Sarija Banu v. State (Supreme Court)
Held that courts must examine alleged Section 42 violations at the bail stage. Applied here but found not helpful to the applicant since compliance was established.
2. Aarif Akram Singh Shaikh (Bombay High Court)
Cited by the applicant but distinguished due to different factual circumstances and absence of commercial quantity recovery.
3. Collector of Customs v. Ahmadalieva Nodira (Supreme Court)
Defined “reasonable grounds” under Section 37 as requiring substantial, not prima facie, grounds. This standard led the Court to decline bail.
FAQ SECTION
1. Why did the Court deny bail in this NDPS case?
Because 460 grams of MD is a commercial quantity, triggering the strict bar under Section 37. The Court found no reasonable grounds to believe the applicant was not guilty and saw a risk of absconding due to her expired visa.
2. Does failure of panch witnesses to sign the Section 50 letter invalidate the search?
No. The Court held that Section 50 does not mandate panch signatures on the communication apprising the accused of their rights. Compliance was otherwise established.
3. Can long incarceration help secure bail in commercial quantity NDPS cases?
Not unless exceptional delay or violation of constitutional rights is shown. Mere passage of time does not dilute Section 37’s mandatory conditions. The Court found no undue delay here.
