Created by Fuzzy Cloud

Bombay High Court

OENKEUKWU ELIJAH IFEANYIversusTHE STATE OF MAHARASHTRA

Decided
Disposal
Allowed

Holding

The High Court allowed bail to the applicant, subject to stringent conditions.

Summary

The applicant, a foreign national, was arrested under the NDPS Act for possession of 101 grams of MD and has been in custody for 2 years and 5 months. He contended that the prosecution failed to comply with Sections 42 and 50 of the NDPS Act, and that the FIR and seizure records were defective. Relying on Section 37 of the NDPS Act and the constitutional right to speedy trial under Article 21, the court examined whether bail could be granted despite the alleged commercial quantity of the contraband. The court noted several Supreme Court and High Court precedents where bail was granted to under‑trial accused after prolonged detention, even in commercial‑quantity cases. Balancing the procedural lapses, the long pre‑trial incarceration, and the applicant’s foreign status, the court allowed bail with strict conditions.

Issues considered

  • Whether bail can be granted in an NDPS offence involving alleged commercial quantity when procedural requirements under Sections 42 and 50 are not complied with.
  • Whether the applicant’s prolonged pre‑trial detention violates the right to speedy trial under Article 21, justifying bail.
  • Whether the applicant’s status as a foreign national precludes the grant of bail under Section 37 of the NDPS Act.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • commercial quantity
  • under‑trial detention
  • speedy trial
  • Article 21
  • procedural lapse
  • foreign national
  • Section 37
  • Section 42
  • Section 50

Judgment

                                                              83.BA.2268.2025.doc

Ajay

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         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 Pradesh 2 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 Bengal 5

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
                  Digitally signed
                  by AJAY
                  TRAMBAK
       AJAY       UGALMUGALE
       TRAMBAK
       UGALMUGALE Date:
                  2026.09.23
                  20:00:00
                  +0530




                                                                                12 of 12


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

Lawyer court records for this case

Associated through the court’s case reference.

For a signed copy suitable for filing, refer to the court's website.