20. BA-3445-26.odt Amberkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 3445 OF 2026 Faisal @ Dadi Shafi Shaikh .. Applicant Versus The State of Maharashtra .. Respondent ....................  Ms. Sana Raees Khan a/w Mr. Taraq Sayed, Mr. Jinay Jain & Mr. Parag Sawant, Advocate for Applicant  Ms. Sangita Phad, APP for State  Mr. Vishal Patil, API, ANC Nashik City ................... CORAM : MILIND N. JADHAV, J. DATE : SEPTEMBER 9, 2026 P. C. : 1. Heard Ms. Khan, learned Advocate for Applicant and Ms. Phad, learned APP for State. 2. This is an Application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 seeking bail in connection with C.R. No. 541 of 2024 registered with Nashik Road Police Station for the offence punishable under Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 3. Applicant is arraigned as accused No. 1 in an NDPS offense. He is incarceration for more than 1 year and 10 month after his arrest on 14.10.2024. There are three accused persons in the crime. Accused 1 of 8 20. BA-3445-26.odt Nos. 2 and 3 have been enlarged on bail. Copies of their orders are appended at page Nos. 506 and 512 of the Application. 4. Case of the prosecution is that all three accused persons were traveling in a car which was borrowed by accused No. 1 from a friend of his, and who have been apprehended on the basis of secret information. The secret information does not specifically state that it was the accused No. 1 who was traveling in the car with the alleged contraband. It merely stated that accused persons would be traveling in the car with the alleged contraband. 5. That apart, positive case of the prosecution is that insofar as accused No. 2 is concerned, there have been money transactions with accused No. 1 and therefore accused No. 2 was also indicted. However, the learned Trial Court has given the benefit of doubt to accused No. 2 on this ground and held that the contraband recovery was not made from accused No. 2 notwithstanding the fact that the Court has found that there were repeated contacts and transactions with regard to monetary transactions between the accused persons. Accused No. 3 has also been enlarged on bail on similar grounds. 6. Considering that the quantity of the contraband recovered is 99.05 grams, the rigours of Section 37 of the NDPS Act would apply, the said quantity being a commercial quantity. There are no 2 of 8 20. BA-3445-26.odt antecedents of the Applicant save and except one antecedent under Section 323 of the IPC as informed by Ms. Khan. 7. Considering that there are no other antecedents qua the Special Act against the Applicant, I am inclined to consider the case of the Applicant for grant of bail. More so, especially in view of the fact that for the past two years, though despite charge having been framed, trial has not commenced and therefore, even otherwise on the ground of long incarceration in an NDPS matter, the Applicant is entitled to bail. 8. 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:- 9. In the case of Nitish Adhikary alias Bapan Vs. State of West Bengal1 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. 1 2022 SCC OnLine SC 2068 3 of 8 20. BA-3445-26.odt 10. In the case of Babor Ali Mondal Vs. State of West Bengal2 the Supreme Court considering the long incarceration granted bail to an undertrial-accused who was incarcerated for 1 year and 4 months. 11. In the case of Sukhvinder Singh Bittu Vs. State of Punjab3 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. In the case of Mohd. Mobin Jahurul Hasan Manihar Vs. State of Maharashtra4 - 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. From the above, it is apparent that inspite of the stringent test to be met by the accused person under Section 37 of the NDPS Act for being released on bail, it has been held that the same does not fetter grant of Bail to the Accused person on the ground of undue delay in the completion of trial. It has been held that incarceration for substantial period of time generally militates against the right to life and liberty guaranteed under Article 21 of the Constitution of India 2 Criminal Appeal No. 3349 of 2024 3 Cri. Appeal No.1204 of 2024 4 BA No.713 of 2024 decided on 20.01.2025 4 of 8 20. BA-3445-26.odt and hence the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act. 14. Attention of this Court is drawn to the observations made in paragraph Nos. 19 to 24 by the Supreme court in the case of Mohd. Muslim alias Hussain v. State (NCT of Delhi)5 which reads thus:- "19. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439 CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under the Special Acts (the NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice : even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such Special Acts, has to address itself principally on two facts : likely guilt of the accused and the likelihood of them not committing any offence upon release. This Court has generally upheld such conditions on the ground that liberty of such citizens has to—in cases when accused of offences enacted under special laws—be balanced against the public interest. 20. A plain and literal interpretation of the conditions under Section 37 (i.e. that court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only 5 2023 SCC OnLine SC 352 5 of 8 20. BA-3445-26.odt manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. 21. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this Court have, therefore, emphasised that the satisfaction which courts are expected to record i.e. that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Mallik (2009) 2 SCC 624. Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436-A which is applicable to offences under the NDPS Act too (Satender Kumar Antil v. CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1] ). Having regard to these factors the Court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail. 22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31-12-2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 prisoners in the country. Of these 1,22,852 were convicts; the rest 4,27,165 were undertrials. 23. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State - 1993 SCC OnLine Ker 127 : 1993 Cri LJ 3242] as “a radical transformation” whereby the prisoner : “13. … loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity and autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.” 24. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal” [ Working Papers - Group on Prisons & Borstals - 1966 U.K.] (also see Donald Clemmer's “The Prison Community” published 6 of 8 20. BA-3445-26.odt in 1940 [ Donald Clemmer, The Prison Community(1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, “Donald Clemmer's Concept of Prisonisation”, available at:<https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobecki_sklad.p df> (accessed on 23-3-2023).] ). Incarceration has further deleterious effects—where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials— especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.” 15. In the above prima facie facts and circumstances of the case the Applicant before me has made out a case for bail. Hence, Applicant is released on bail in the following terms and conditions:- (i) Applicant is directed to be immediately released from prison in connection with C.R. No. 541/2024; (ii) Applicant is directed to be released on bail on furnishing P.R. Bond of Rs. 50,000/- (Rs. Fifty Thosand only) with one or two sureties in the like amount; (iii) Applicant shall report to the concerned Investigating Officer once every month on the first Sunday of the month between 10:00 a.m. to 12:00 p.m.; (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 State of Maharashtra 7 of 8 20. BA-3445-26.odt without prior permission of the Trial Court; (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. 16. Needless to state that the above observations will not come in the way of trial as they are prima facie in nature based on the submissions made and the material placed before this Court. 17. Bail Application is allowed and disposed of in the above terms. Amberkar [ MILIND N. JADHAV, J. ] 8 of 8 RAVINDRA MOHAN AMBERKAR Digitally signed by RAVINDRA MOHAN AMBERKAR Date: 2026.09.10 14:55:31 +0530