Bombay High Court

AGUILUM JUDE EBUKAversusSTATE OF MAHARASHTRA

Decided: 28 September 2026
Disposal: Allowed

Holding

Due to the undue delay, procedural deficiencies and the constitutional right to liberty, the court held that bail must be granted to the accused.

Summary

The Bombay High Court considered two bail applications filed by foreign nationals charged under Sections 8(c), 21(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for alleged possession of commercial quantity of contraband. The applicants had been in custody for nearly two years without the trial commencing, and the court noted non‑compliance with mandatory Section 50 and Section 52 notices. Citing Supreme Court and High Court precedents that grant bail to under‑trials despite commercial quantity when there is undue delay, the court held that the procedural lapses and prolonged incarceration violated the applicants' right to liberty under Article 21. Consequently, the court granted bail with stringent conditions, including a cash bond, reporting requirements, and restrictions on travel. The bail applications were allowed and disposed of.

Issues considered

Whether bail can be granted to accused of commercial quantity offences under the NDPS Act despite the stringent test of Section 37.
Whether non‑compliance with Section 50 and Section 52 notices and the prolonged pre‑trial detention justify granting bail.
Whether the foreign nationality of the accused precludes the grant of bail.

Legislation cited

Code of Criminal Procedure, 1973 — s. 436, 437, 439
Foreigners Act, 1946 — s. Registration of Foreigners Rules, 1992
Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 22(c), 37, 50, 52, 8(c)

Subjects

NDPS Act
bail
undertrial detention
commercial quantity
foreign national
Section 37
Section 50
Section 52
right to liberty
undue delay

Judgment

33. BA-1857-26 & 1924-26.odt

Amberkar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO. 1857 OF 2026

Aguilum Jude Ebuka .. Applicant
Versus
State of Maharashtra .. Respondent

WITH
BAIL APPLICATION NO. 1924 OF 2026

Eneje Grace Chinonyen .. Applicant
Versus
State of Maharashtra .. Respondent

....................
 Mr. Shekhar S. Bhandary a/w K.S. Bhandary, Advocates for
Applicants
 Mr. Amit K. Munde, APP for State
 Mr. Kishor Khadke, API, Taloja Police Station, Navi Mumbai
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 28, 2026
P. C.:

1. Heard Mr. Bhandary, learned Advocate for Applicants and Mr.

Munde, learned APP for State.

2. Common order is being passed in both the Bail Applications.

3. Applicants are foreign nationals. They are indicted in the crime

in connection with C.R. No. 451 of 2024 registered with Taloja Police

Station for the offences punishable under Sections 8(c), 21(c) and

22(c) of the Narcotic Drug and Psychotropic Substances Act, 1985 (for

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short "NDPS Act"). Both have been in incarceration for the past 1 year

10 months pending trial. Investigation is completed. Trial has not

begun.

4. Prima facie, the notice under Section 50 of the NDPS Act and

the intimation required to be given regarding appraisal of the right of

the arrestee under Section 52 of the NDPS Act, copies of which are

appended at page 39 to 41 onwards, leaves much to be desired. There

is prima facie non-compliance of the said provisions.

The signatures of the Applicants are not appearing, though it is the

case of the prosecution in the FIR that they refused to sign. If that be

the case, such a remark ought to have been appended on the Section

50 notice itself. The fact that the said notice does not have the said

remark leaves an element of doubt and suspicion.

5. Insofar as compliance of Section 52 notice is concerned, the case

is much worse. The witnesses have not appended their signatures at all

despite the FIR stating so to the contrary. Though learned APP would

vehemently argue that commercial quantity of contraband has been

recovered from the accused on the basis of secret information received

and the rigor of Section 37 will have to be applied, the NDPS Act itself

mandates that trial should be concluded within a period of one year

and here is a case where for the past almost two years, the trial has

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not begun. Merely because the Applicants before the Court are foreign

nationals, that cannot be a reason for incarceration.

6. Insofar as the commercial quantity of the contraband having

been recovered is concerned, Applicants can be put to stringent

conditions so as not to re-offend and if that be the case, the bail can be

directed to be cancelled.

7. The procedure under Section 50 and 52 being very crucial and

important steps at the threshold are required to be satisfied without

any suspicion. If that is not the case, it leaves an element of doubt in

the mind as to whether the procedure that is prescribed has been

adopted and followed, or otherwise especially so when the FIR prima

facie shows that the said procedure has been followed to the hilt.

If the appended documentation is not in consonance with the

procedure and the FIR filed, then the case of the Applicants will have

to be considered for grant of bail.

8. One more reason which impels me to consider the Applicants'

case for grant of bail is in view of the investigation being completed

and chargesheet been filed.

9. 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

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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:-

10. 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.

11. 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.

12. 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.

13. 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

1 2022 SCC OnLine SC 2068
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

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incarcerated for 1 year 11 months. The contraband in question was

220 gms of MD, the commercial quantity of which is 50 gms.

14. 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

and hence the conditional liberty must override the statutory embargo

under Section 37 of the NDPS Act.

15. 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

5 2023 SCC OnLine SC 352

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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
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,

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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
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.”

16. In the above prima facie facts and circumstances of the case the

Applicants before me have made out a case for bail. Hence considering

the period of long incarceration for almost two years and the

probability of the trial not commencing and for that matter not

concluding in the near foreseeable future persuades me to allow the

Applications. Hence, both the Applicants are released on bail on the

following terms and conditions:-

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(i) Applicants are directed to be immediately released on

bail from prison in connection with C.R. No. 451 of

2024;

(ii) Applicants are directed to be released on bail on

furnishing P.R. Bond of Rs. 50,000/- each (Rs. Fifty

Thousand Each) with one or two sureties in the like

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 cae

of Union of India v. Chidiebere Kingsley Nawchara &

Ors.6

(iii) Applicants shall report to the concerned Police Station

once every month on the first Sunday of the month

between 10:00 a.m. to 12:00 p.m.;

(iv) Applicants 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 they do so it will entitle the
6 SLIP (Cri) No.(s). 14185 of 2025

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prosecution to apply for revocation of this order;

(v) Applicants shall not leave the country without prior

permission of the Trial Court. Applicants are directed

to deposit their passports, if, any with the Trial Court

within a period of one week of their release from

prison.

(vi) Applicants shall not influence any of the witnesses or

tamper with the evidence in any manner;

(vii) Applicants shall keep the Investigating Officer informed

of their current addresses and mobile contact numbers

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 Applicants;

(ix) 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.7
7 Criminal Appeal No. 2814-2815 of 2024 decided on 06.01.2025

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17. 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.

18. Both the Bail Applications are allowed and disposed of in the

above terms.

Amberkar [ MILIND N. JADHAV, J. ]

Digitally signed
by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.09.28
15:26:13 +0530

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