BA.966.2026.doc HARSHADA H. SAWANT (P.A.) 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.966 OF 2026 Gurjugdip Singh Smagh S/o. Jagroop Singh .. Applicant Versus The Union of India and Anr. .. Respondents ....................  Ms. Namasvi Bhanushali a/w. Mr. Mithilesh Mishra, Advocates for Applicant.  Ms. Megha Bajoria, SPP a/w. Ms. Khushi P. Agarwal, Advocate for Respondent No.1. ................... CORAM : MILIND N. JADHAV, J. DATE : SEPTEMBER 07, 2026 P.C. : 1. Heard Ms. Bhanushali, learned Advocate for Applicant and Ms. Bajoria, learned SPP for Respondent No.1. 2. This is an Application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 / Section 439 of the Code of Criminal Procedure, 1973 seeking Bail in connection with Crime No.DRI/MZU/NS-II,INT-88/2012 registered with Directorate of Intelligence for offences punishable under Sections 8(c), 21(c), 23, 27A, 28, 29, 30 and 35 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short ‘NDPS Act’). 3. According to the First Information Report the date of alleged incident is 19.09.2022. Applicant is arrested on 30.11.2022. 1 of 11 BA.966.2026.doc 4. Ms. Bhanushali, learned Advocate for Applicant would submit that Applicant is a permanent resident of Ludhiana, Punjab and is charged with offences under provisions of NDPS Act for allegedly having imported licorice roots soaked in narcotic substances under Bill of Lading dated 06.06.2021. She would submit that according to prosecution the imported container was declared to contain licorice roots of gross weight of 15,015 kg and having net weight of 13,500 kg. She would submit that admittedly out of 436 bags contained in the said container a few bags were selected and sample roots, wooden sticks and twigs were removed for testing out of which some of them tested positive for presence of heroin and some of them tested negative. She would submit that nexus of Applicant to the contraband is alleged on the basis of he having transmitted Rs. 1.5 Lakh to accused No. 1’s Company account for clearing the container at the port of discharge. 5. She would submit that in such a background, on the basis of record there is prima facie non-compliance of Section 42 of the NDPS. She would submit that Accused No.1 was arrested on 20.09.2022 and his statement was recorded on that date under Section 67 of the NDPS Act. She would submit that Accused No.1 named and disclosed name of the Applicant for he having dealth with his about import and export through a firm called Smagh Trading Company. She would submit that according to the prosecution case through the Company of 2 of 11 BA.966.2026.doc Accused No.1, the present Applicant alongwith Accused No.3 imported a consignment of dry fruits from Afghanistan through a Shipping Agency Company. 6. She would submit that case against Applicant is for transfer of Rs. 1.5 Lakhs to Accused No.1 being cost for clearance of the said imported consignment and the same having been paid by Accused No.1 to the customs broker called Anand Kursija for clearing the consignment. On the aforesaid factual background, according to prosecution, Applicant is arraigned as Accused No.2. 7. Ms. Bhanushali would vehemently submit that the principal mastermind for importing the consignment from Afghanistan was Accused No.3, who is absconding. She would submit that Accused No.1 cleared the said consignment alongwith the Customs’ broker / Clearing House Agent and there is no direct role attributed to the Applicant, (Accused No.2) at all. She would submit that on 10.03.2025, Applicant was released on bail. That copy of order is appended at Exhibit - B, page No.518. She would submit that in the Criminal Appeal filed to challenge the said order, the Supreme Court set aside the said order on the ground that the grounds considered by the High Court could not be the only grounds on which consideration of bail in a henious crime was required. The order of Supreme Court is appended at Exhibit - C page No.522. Hence on 16.12.2025, bail 3 of 11 BA.966.2026.doc granted to Applicant was cancelled and he surrendered. 8. Both Ms. Bhanushali, learned Advocate for Applicant and Ms. Bajoria, learned SPP for Respondent No.1 contend that since the the order for grant of bail did not record the reasons under Section 37 of the NDPS Act, to the satisfaction of the Court, the bail order was cancelled. Thus both the learned Advocates have argued on twin conditions about satisfaction of the Court that there are reasonable grounds for believing that the Accused is not guilty and that he is not likely to commit the offence while on bail, need to be considered. Both the learned Advocates done justice to their respective briefs and made the respective submissions, rather forcefully. 9. Ms. Bhanushali would submit that apart from having no antecedents, Applicant having deep roots in the Society, Applicant’s indictment is based upon transfer of an amount of Rs.1.5 Lakhs to Accused No.1 for clearance of the consignment, there is no other theory propounded by the prosecution to show complicity of the Applicant in the crime, in commission of the crime or to the shipment of the goods. She would argue that prosecution's case is based on generic assertions unrelated to the seizure in question and therefore they are legally insufficient to satisfy the restrictions under Section 37 of the NDPS Act. 4 of 11 BA.966.2026.doc 10. She would submit that there is no seizure made from the Applicant, no electronic trail leads to Applicant's complicity, no documentary evidence to show Applicant’s role directly related to the consignment in question or the other co-accused, and therefore merely based on hearsay assertions, confessional statements and unsubstantiated electronic material complicity of the Applicant cannot be attributed. 11. She would argue that implication of Applicant on the basis of witness statement without independent proof thereof cannot by itself establish prima facie guilt which is the case herein. Hence she would submit that both the twin tests namely, the rigors of Section 37 of the NDPS Act prima facie stand satisfied in the facts of the present case. 12. PER CONTRA, Ms. Bajoria, learned SPP for Respondent No.1 would vehemently argue and submit that Applicant’s complicity is prima facie established in importing the consignment. Hence, at the outset, she would argue on conduct of the Applicant. She would submit that role of the Applicant is explained by Custom House Clearing Agent and his statement is appended at page No.632 of the Application. She would submit that Applicant’s brother did not disclose his name in the first statement but in a subsequent statement after his arrest, Applicant’s name was disclosed. She would vehemently argue that Applicant transferred Rs.1.5 Lakhs to the 5 of 11 BA.966.2026.doc account of Accused No.1 for clearing the consignment thus establishing his complicity. She would submit that the Custom House Agent witness is an independent witness and therefore his statement has a much higher degree of veracity. 13. Next, she would submit that the Chemical Analysis Report is positive with regard to presence of contraband substance on the licorice roots, stems and twigs in the seized consignment. She would submit that considering the extent of the contraband seized, even though long incarceration is pleaded as one of the grounds, there is every likelihood that the Applicant will re-offend himself and therefore considering the gravity of the crime and the humongous amount of contraband seized, the same would not apply to grant of bail on the ground of long incarceration. 14. She would submit that in the trial, prosecution though desires to examine 40 probable witnesses, but endeavour is to examine only 15 key witnesses and complete the trial within one year. She would draw my attention to the decision of the Supreme Court in the case of State of Punjab versus Balraj Singh @ Billa1, and more specifically paragraph No.22 thereof, copy of which is appended at page No.677 to contend that Supreme Court has repeatedly held and stated that should there be any conflict between the sovereignty of the 1 Criminal Appeal No.___ of 2026 (@ Special Leave Petition (Crl.) No.896 of 2026) decided on 02.06.2026 6 of 11 BA.966.2026.doc country and personal liberty, undoubtedly the sovereignty of the Country shall prevail particularly when a war is waged against the nation be it in the form of supply of drugs which vitally affects the national economy and health of the people or otherwise. Hence, she would submit that the Bail Application be dismissed and if possible, appropriate directions be given to complete the trial within one year. 15. I have heard Ms. Bhanushali, learned Advocate for Applicant and Ms. Bajoria, learned SPP for Respondent No.1 and with their able assistance, perused the record of the case. 16. Prima facie, the only evidence of indictment qua the Applicant in question is the confessional statement of Accused No.1 and a hearsay evidence of one witness who is the Custom House Clearing Agent. Prima facie, whether the amount of Rs.1.5 Lakhs transferred for clearing the consignment was with regard to clearance of the said consignment or otherwise to establish the complicity of the Applicant, will be a matter of trial. This is the only material which the prosecution has referred to for establishing nexus. 17. Prosecution case, prima facie shows that Applicant was instrumental in importing the contraband for which he transferred Rs.1.5 Lakhs to Accused No.1 but it also establishes the fact, prima facie, that he had taken back the said amount. This is undoubtedly a matter of trial. Trial has not commenced in the past more than four 7 of 11 BA.966.2026.doc years. The factum of Applicant being in conscious and culpable possession of the contraband or otherwise directly involved in importing the contraband when no recovery is effected from him or no material is placed on record to show his nexus is nothing but speculative and inferential and therefore, it gives rise to a reasonable ground to believe that the Applicant is not guilty, thus satisfying the first condition under Section 37 of the NDPS Act in the present case. 18. This prima facie guilt of the Applicant cannot be based upon a mere confessional statement and a mere witness statement when the prosecution story is of direct nexus to the humongous contraband seized. The second condition about Applicant likely to commit or repeat the same offence while on bail can be considered on the ground that Applicant has no antecedents. He is based in Ludhiana, Punjab and is into business and has deep roots in society. 19. The learned SPP has been heard fully and though it may be true that a humongous contraband is seized, the prosecution has failed to prima facie show a reasonable nexus to enable me to accept the prosecution case at this stage. In that view of the matter, prosecution may be otherwise right with regard to the observations made by the Supreme Court in the case of State of Punjab Vs. Balraj Singh @ Billa (supra), but it cannot be made applicable to the facts in the present case in a generic sense in the absence of prima facie material and 8 of 11 BA.966.2026.doc hence, prosecution has fallen short of establishing a direct nexus of the Applicant with the seizure of the alleged contraband. 20. Most importantly prosecution has not been able to establish any money trail qua the seized contraband attributable to the Applicant with any of the other accused before me. Applicant is already incarcerated for a substantial period of more than 4 years in jail. Applicant has prima facie satisfied the threshold and twin tests for the bar of Section 37 under the NDPS Act to apply in the present case on the aforesaid prima facie findings. Having expressed such prima facie findings, I am of the opinion that continuation of incarceration of the Applicant is not required. The Application for bail stands allowed and the Applicant is granted bail subject to following conditions:- (i) Applicant is directed to be immediately released from prison in connection with Crime No.DRI/MZU/NS- II,INT-88/2012; (ii) Applicant is directed to be released on bail on furnishing P.R. Bond of Rs. 50,000/- (Rs. Fifty Thousand only) with one or two surety / sureties of the like amount; (iii) Applicant shall report to the Investigating Officer at the concerned Police Station, once every month on the first Monday of the month between 10:00 a.m. to 12:00 9 of 11 BA.966.2026.doc p.m.; (iv) Applicant shall co-operate with the conduct of trial and attend the hearing before Trial Court on all hearing 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 and shall deposit his passport with the Trial Court within one week of his release from jail; (vi) Applicant shall not influence any of the witnesses or tamper with the evidence in any manner; (vii) 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 (viii)Any infraction of the conditions shall entail cancellation of bail granted to the Applicant. 21. 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 the strength of the evidence led and strictly on its own merits being 10 of 11 BA.966.2026.doc uninfluenced with any of the prima facie observations made hereinabove in this order. 22. Bail Application is allowed and disposed of in the above terms. H. H. SAWANT [ MILIND N. JADHAV, J. ] 11 of 11 HARSHADA HANUMANT SAWANT Digitally signed by HARSHADA HANUMANT SAWANT Date: 2026.09.07 11:42:56 +0530