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
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 22(c), 37, 42, 50, 8(c)
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
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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
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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;
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(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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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