83.BA.2268.2025.doc Ajay IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 2268 OF 2025 Oenkeukwu Elijah Ifeanyi .. Applicant Versus State of Maharashtra .. Respondent ....................  Mr. Ashwini Achari, Advocate for Applicant.  Mr. Amit A. Palkar, APP for Respondent – State. ......…........… CORAM : MILIND N. JADHAV, J. DATE : SEPTEMBER 23, 2026. P.C.: 1. Heard Ms. Achari, learned Advocate for Applicant and Mr. Palkar, learned APP for Respondent – State. 2. This is an Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) seeking bail in connection with FIR No.131 of 2024 registered with N.R.I. Sagari Police Station for offences punishable under Section 8(c) read with 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) in relation to Special Case No.147 of 2024 pending before the learned Sessions Court, Panvel. 3. Applicant is indicted in an NDPS offence and he is incarcerated for 2 years 5 months pending trial. Recovery is of 101 grams of MD. The record prime facie shows that compliance under 1 of 12 83.BA.2268.2025.doc Section 50 of the NDPS Act has not been done by the prosecution. Since the contents of FIR are devoid of the same, neither seizure panchnama spells out whether applicant was apprised of his right for personal search before effecting seizure of the alleged contraband. 4. The information given to Applicant about his grounds of arrest and for personal search do not bear his signature and prime facie shows non-compliance. There is also a discrepancy with regard to the description of the contraband in the inventory panchnama and the sample sent for chemical analysis, wherein the sample number differs, as also the description of the contraband also differs. 5. Considering the incarceration, rather long incarceration of the applicant for 2 years 5 months, the ignominy of the trial not commencing and for that matter concluding, the applicant has made out a case for grant of bail. 6. The order passed in the case of Chandrabhan Janardhan Yadav v. State of Maharashtra1 itself is a reminder to this, that the statutory provisions under NDPS Act are required to be scrupulously followed and adopted by the prosecution while effecting search and seizure. In the present case admittedly there is clear non-compliance of Section 42 of the NDPS Act as the officer who received the information (secret tip) did not forward the said information to his immediate 1 2025:BHC-AS:10527 2 of 12 83.BA.2268.2025.doc senior. 7. Non compliance of Section 50 is another aspect which is prima facie seen in the present case that there is absence of appraisal as stated under Section 50 to the accused person. Merely because Applicant is a foreigner and trial still not having been commenced, Applicant cannot be kept in jail when there is no progress shown in the trial. The Applicant is incarcerated for the past 2 years 5 months. 8. It is settled law that a Court while deciding a Bail Application has to keep in mind the principal rule of bail which is to ascertain whether the Accused is likely to appear before the court for trial. There are other broad parameters also like gravity of offence, likelihood of Accused repeating the offence while on bail, whether he would influence the witnesses and tamper with the evidence, his antecedents which are required to be considered in such cases. However the metrics of judicial decision making gets amplified or rather shuttled to another facet when dealing with offences where Section 37 of NDPS Act is attracted. In such cases one has to satisfy itself with the rigors of the twin conditions as prescribed under Section 37 of the NDPS Act. Section 37 reads thus:- “37. Offences to be cognizable and non-bailable.:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; 3 of 12 83.BA.2268.2025.doc (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless:- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 9. From the reading of Section 37 of the NDPS Act, it becomes clear that the legislature intends to deny bail to accused alleged to be in possession of commercial quantity of contraband in absence of court subscribing to a contrary view, however therefore if seen it does not rule out the facet of discretion of Court to grant bail. Furthermore the Court must be satisfied that the accused is unlikely to re-offend. It is seen that while dealing with Bail Applications the material available for consideration and adjudication is limited. In such cases, if we look realistically the provisions of Section 37 leave limited room for a possibility of granting bail to the accused. However employing such limitation would create a dichotomy in the current scenario where one common grievance is made before this Court repeatedly in matter after matter. It is brought to the notice of the Court that trials are taking perpetuity to be concluded and prisons are also simultaneously overcrowded in some segments. 4 of 12 83.BA.2268.2025.doc 10. Argued before me is a case concerning liberty of an under- trial who has been incarcerated for almost 2 years 5 months, a situation impacting the rights of undertrial conferred by Article 21 of Constitution to speedy justice as also personal liberty. In so far as the power of High Courts to grant bail is concerned, when the case is such that involves a question of personal liberty of an undertrial who is incarcerated for a very long period, the powers are wide and unfettered by conditions, the principle rule being that bail is the rule and refusal is the exception, allowing accused persons to better prepare their defense. The conduct of prosecution qua the Applicant because he is a foreigner / foreign national is not understood by this Court. Merely because he is a foreigner, he should not be granted bail as he will be a menace to the Society and he is likely to reoffend is what is argued before me. Nothing prevents the prosecution from completing the trial, which is pending without charge for the past 2 years and 5 months. 11. The Supreme Court has also held in a series of judgments and orders that in situations where the under-trial prisoner / accused persons have suffered incarceration rather long incarceration for considerable period of time and there is no possibility of the trial being completed within the foreseeable future, Constitutional Courts can exercise power to release the accused under-trial on bail, as bail is the rule and jail is the exception. 5 of 12 83.BA.2268.2025.doc 12. In the following decisions of the Supreme Court and various High Courts concerning such long detention and imprisonment of undertrial prisoner / accused on being apprehended with commercial quantity of various contrabands, the Courts have in the backdrop of the aforementioned propositions exercised its unfettered jurisdiction in releasing an undertrial on bail on account of long incarceration by using its discretionary powers:- 12.1. In the case of Dheeraj Kumar Vs. State of Uttar Pradesh2 the Supreme Court considering long incarceration granted bail to an undertrial-accused who was incarcerated for 2 years and 6 months granted him bail. The contraband in question was Ganja the commercial quantity of which is 20 Kilograms. In this case recovery of 65 Kilograms was allegedly made from the accused despite which, the Court invoking the right to speedy justice flowing from Article 21 and forceeable delay in trial granted bail to the Accused. 12.2. In the case of Balkishan Vs. State of Madhya Pradesh3 the Supreme Court considering long incarceration of an undertrial-accused who was incarcerated for 2 years and 5 months granted him bail. The contraband in question was Poppy Straw, the commercial quantity of which is 50 kilograms when recovery of 80 kilograms was allegedly made from the accused. 2 2023 SCC OnLine 918 3 Petition for Special Leave to Appeal (Cri) No. 8415 of 2024 6 of 12 83.BA.2268.2025.doc 12.3. In the case of Badsha Sk. Vs. State of West Bengal4 the Supreme Court considering long incarceration of an undertrial-accused who was incarcerated for 2 years and 4 months granted him bail. The contraband in question was Codeine Phosphate, the commercial quantity of which is 1 kilograms when recovery of 100 bottles each of 100 ml. was allegedly made from the accused. 12.4. In the case of Man Mandal and Anr. Vs. State of West Bengal5 the Supreme Court considering long incarceration of an undertrial- accused who was incarcerated for 2 years granted him bail despite being alleged to be in possession of commercial quantity of contraband. 12.5. In the case of Ankur Chaudhary Vs. State of Madhya Pradesh6 the Supreme Court considering long incarceration of an undertrial-accused granted him bail to an undertrial-accused who was incarcerated for about 2 years. 12.6. In the case of Nitish Adhikary alias Bapan Vs. State of West Bengal7 the Supreme Court considering long incarceration of an undertrial-accused granted him bail to an undertrial-accused who was incarcerated for 1 year and 7 months despite being alleged to be in possession of commercial quantity of contraband. 4 2023 SCC OnLine SC 1867 5 2023 SCC OnLine SC 1868 6 Petition for Special Leave to Appeal (Cri) No. 4648 of 2024 7 2022 SCC OnLine SC 2068 7 of 12 83.BA.2268.2025.doc 12.7. In the case of Babor Ali Mondal Vs. State of West Bengal8 the Supreme Court considering the long incarceration granted bail to an undertrial-accused who was incarcerated for 1 year and 4 months. 12.8. In the case of Sukhvinder Singh Bittu Vs. State of Punjab9 the Supreme Court considering long incarceration of an undertrial-accused granted him bail who was incarcerated for 1 year despite being alleged to be in possession of commercial quantity of poppy straw. 12.9. In the case of Tinku Vs. State (NCT of Delhi)10 the Delhi High Court considering the long incarceration of an undertrial-accused granted him bail who was incarcerated for 2 years and 5 months. The contraband in question was Heroin, the commercial quantity of which is 250 grams. In this case recovery of 945 grams was allegedly made from the accused despite which the High Court invoking the right to speedy justice flowing from Article 21 of the Constitution and forceeable delay in trial granted bail to the accused. 12.10. In the case of Kulwinder Singh Vs. State of Punjab11 the Punjab and Haryana High Court considering long incarceration of an undertrial-accused granted him bail who was incarcerated for 2 years and 8 months. The contraband in question was Etizolam Salt, the commercial quantity of which is 2.5 grams. In this case recovery of 8 Criminal Appeal No. 3349 of 2024 9 Cri. Appeal No.1204 of 2024 10 2024 SCC OnLine Del 9132 11 CRM-M-26704 of 2024 8 of 12 83.BA.2268.2025.doc 99.876 grams was allegedly made from accused despite which the High Court invoking the right to speedy justice flowing from Article 21 of the Constitution and delay in trial granted bail to the accused. 12.11. In the case of Mohd. Mobin Jahurul Hasan Manihar Vs. State of Maharashtra12 - this Court on 20.01.2025 considering long incarceration of the under-trial accused granted bail to him who was incarcerated for 1 year 11 months. The contraband in question was 220 gms of MD , the commercial quantity of which is 50 gms. 13. In all the above cases the right to speedy justice flowing from Article 21 of the Constitution of India and the foreseeable delay trial were considered as imminent grounds for grant of bail apart from the rigours of Section 37 of the NDPS Act in the facts of the said case. 14. In view of the above prima facie observation and judicial pronouncements, Bail Application is allowed subject to the following terms and conditions:- (i) Applicant - Oenkeukwu Elijah Ifeanyi is directed to be immediately released from prison in connection with C.R. No. 131 of 2024; (ii) Applicant is directed to be released on bail on furnishing P.R. Bond of Rs. 50,000/- (Rupees Fifty Thousand only) with one or two sureties of the like 12 BA No.713 of 2024 decided on 20.01.2025 9 of 12 83.BA.2268.2025.doc amount. It is clarified that no bail bond in respect of an accused of a non-bailable offence who is a foreign national such as in the present case, shall be executed by a Licensed Professional Bail Bondspersons save with the express permission of the concerned Court accepting bail and surety bond. This condition is added in view of the decision of the Supreme Court in the case of Union of India Vs. Chidiebere Kingsley Nawchara & Ors.13 (iii) Applicant shall report to the Investigating Officer at N.R.I. Sagari Police Station, once every month on the first Sunday of the month between 10:00 a.m. to 12:00 p.m. to mark his presence; (iv) Applicant shall co-operate with the conduct of trial and attend the Trial Court on all dates, unless specifically exempted and will not take any unnecessary adjournments, if he does so it will entitle the prosecution to apply for revocation of this order; (v) Applicant shall not leave the country without prior permission of the Trial Court; (vi) Applicant shall deposit his passport with the Trial Court 13 SLP (Cri) No(s). 14185 of 2025 10 of 12 83.BA.2268.2025.doc within a period of one week from his release from prison; (vii) Applicant shall not influence any of the witnesses or tamper with the evidence in any manner; (viii)Applicant shall keep the Investigating Officer informed of his current address and mobile contact number and / or change of residence or mobile details, if any, from time to time, as applicable; and (ix) Any infraction of the conditions shall entail cancellation of bail granted to the Applicant; (x) The concerned prosecuting Agency shall immediately communicate this order of grant of bail to the concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 within the meaning of the Foreigners Act, 1946. This condition is added in view of the decision of the Supreme Court in the case of Frank Vitus v. Narcotics Control Bureau & Ors.14. 15. It is clarified that the observations made in this order are limited for the purpose of granting bail only and I have not made any observations on merits of the case. The trial shall be adjudicated on 14 Criminal Appeal No.2814-2815 of 2024 decided on 06.01.2025. 11 of 12 83.BA.2268.2025.doc the strength of the evidence led and strictly on its own merits being uninfluenced with any of the prima facie observations made hereinabove in this order. 16. Bail Application is allowed and disposed of in the above terms. [ MILIND N. JADHAV, J. ] Ajay 12 of 12 AJAY TRAMBAK UGALMUGALE Digitally signed by AJAY TRAMBAK UGALMUGALE Date: 2026.09.23 20:00:00 +0530