Bombay High Court
KINGSLEY EMEKA UKWUEZEversusUNION OF INDIA AND ANR
- Decided
- Disposal
- Allowed
Holding
The Court held that the five‑year pre‑trial detention constitutes a change in circumstances warranting bail, and therefore granted bail.
Summary
Kingsley Emeka Ukwueze, a foreign national, was arrested on 27‑08‑2021 for possession of 155 g of mephedrone and 25 g of ganja. He has been in custody for over five years without the trial commencing. He filed a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, despite earlier bail applications being rejected. The prosecution argued that the application was not maintainable and that Section 37 of the NDPS Act barred bail. The Court held that the prolonged pre‑trial detention itself constituted a change in circumstances, violating the constitutional right to a speedy trial under Article 21, and that jurisprudence permits bail in such situations. Accordingly, the Court granted bail with conditions.
Issues considered
- Whether the bail application is maintainable despite prior rejections and no apparent change in factual circumstances.
- Whether prolonged pre‑trial detention violates the right to speedy trial and justifies bail under Section 37 of the NDPS Act.
- Whether the stringent conditions of Section 37 preclude bail in cases of undue delay.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Code of Criminal Procedure, 1973 — s. 436, 436-A, 437, 439
- Foreigners Act, 1946
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(A), 22(c), 28, 29, 37, 8(c)
- Registration of Foreigners Rules, 1992 — s. Rule 3
Subjects
- bail
- NDPS Act
- Section 37
- speedy trial
- undertrial detention
- foreign national
- Bharatiya Nagarik Suraksha Sanhita
- Article 21
Judgment
35. BA-3361-26.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3361 OF 2026
Kingsley Emeka Ukwueze .. Applicant
Versus
Union of India & Anr. .. Respondents
....................
Mr. Advait Tamhankar, Advocate for Applicant
Ms. Manisha Jagtap a/w Ms. Sairuchita Chowdhary, Advocates for
Respondent No. 1- NCB
Mr. Sukanta A. Karmakar, APP for State
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 28, 2026
P. C.:
1. Heard Mr. Tamhankar, learned Advocate for Applicant; Ms.
Jagtap along with Ms. Chowdhary, learned Advocates for Respondent
No. 1 - NCB and Mr. Karmakar, learned APP for State.
2. This is an Application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023 seeking Bail in connection with F.No.
NCB/MZU/CR-80/2021 registered at the instance of the Narcotics
Control Bureau, Mumbai Zonal Unit, Mumbai for the offences
punishable under Sections 8(c) read with 20(b)(ii)(A), 22(c), 28 and
29 of the Narcotic Drug and Psychotropic Substances Act, 1985 (for
short "NDPS Act") [NDPS Special Case No. 23 of 2022 pending before
the NDPS Spl. Sessions Court, Panvel]
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3. Applicant is a foreign national having been found in possession
of the alleged contraband i.e. 155 grams of Mephedrone (MD) and 25
grams of Ganja. Applicant is behind bar for 5 years and 1 month after
his arrest on 27.08.2021. Trial has not commenced before the Trial
Court.
4. Learned Advocate appearing for the prosecution namely the
NCB would draw my attention to the affidavit-in-reply filed by Mr.
Rohit Gaikwad, Sub-Inspector, NCB, Mumbai, dated 28.09.2026 and
contend that in the first instance at the threshold itself, the present
Bail Application is not maintainable since the previous bail application
of the Applicant has been rejected on merits by a Coordinate Bench of
this Court by order 23.02.2026 and therefore, filing of the present
Bail Application upon change of roster is nothing but a sheer abuse of
the due process of law and this Court should not therefore entertain
such an application and dismiss it.
5. They would submit that there is no change in circumstances and
also the fact that all successive Bail Applications of the Applicant have
been rejected by this Court on merits and therefore instead of
challenging the said order before the superior Court namely the
Supreme Court, the Applicant has once again filed a Bail Application
which, in our opinion, is a review of the earlier order and therefore, a
fresh Bail Application cannot lie.
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6. On merits, they would submit that filing of a successive Bail
Application when the earlier Bail Applications have been rejected on
merits is nothing but to review and recall the same Application which
has been adjudicated earlier and this is in the absence of legally
recognizable change in circumstances or any other exceptional
circumstances warranting reconsideration by the Applicant before the
Court. They would submit that all substantial procedural
requirements have been complied with and therefore, the indictment
of the Applicant is certain in view of the evidence on record.
7. They would submit that long incarceration in itself does not
confer an absolute or indefeasible right to bail and more so
particularly in NDPS cases where rigor of Section 37 get attracted.
They would submit that even prolonged custody cannot dilute strict
conditions and therefore, unless the Court is fully satisfied that there
are reasonable grounds for believing that the accused is not guilty and
not likely to reoffend, the bail should be rejected. Hence, they would
submit that present bail application be rejected.
8. I have considered the submissions advanced by learned
Advocate for the Applicant and the learned Advocates appearing on
behalf of NCB and perused the record of the case.
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9. What strikes at the root of the matter is the long incarceration of
the Applicant for over 5 years 1 month without the trial having
commenced. Though it is argued by the prosecution that in such
matters notwithstanding the long incarceration, Section 37 rigor
would apply, I am afraid I am unable to accept the same.
10. The right to speedy trial is ingrained in the constitutional
principle advanced under Article 21 of the Constitution of India which
by itself applies to the present case. There is no reason for the
prosecution not to have concluded the trial if the prosecution is certain
that the applicant can certainly be convicted. A long period of 5 years
1 month in a special offense where the statute itself prescribes a
timeframe of 1 year to complete the trial is on the face of the record
unacceptable. The constitutional right of the Applicant for a speedy
trial coupled with the long incarceration of the Applicant prompts me
to consider the case of the Applicant for grant of bail. The Applicant
cannot be indefinitely kept languishing in prison, especially when the
State is ineffective and unable to even commence the trial. The
prosecution may have its own problems for not conducting the trial
especially in the present case where there is a co-accused involved but
nothing of that sort has been placed before the Court by the
prosecution to show any special circumstances which would disentitle
the Applicant to seek bail.
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11. The submission of the prosecution on maintainability also
cannot be accepted, since, in the opinion of this Court, every passing
day that an undertrial prisoner suffers in jail has to be considered as a
change in circumstance. There is nothing in law which prevents the
Applicant to approach this Court even though liberty may not be
granted to the Applicant to seek bail.
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:-
13. 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.
14. In the case of Babor Ali Mondal Vs. State of West Bengal 2 the
Supreme Court considering the long incarceration granted bail to an
undertrial-accused who was incarcerated for 1 year and 4 months.
1 2022 SCC OnLine SC 2068
2 Criminal Appeal No. 3349 of 2024
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15. 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.
16. 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.
17. 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.
3 Cri. Appeal No.1204 of 2024
4 BA No.713 of 2024 decided on 20.01.2025
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18. 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
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
5 2023 SCC OnLine SC 352
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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
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
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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.”
19. 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 5 years and 1 month and the trial
not commencing and for that matter not concluding in the near
foreseeable future persuades me to allow the Application. Hence,
Applicant is released on bail on the following terms and conditions:-
(i) Applicant is directed to be immediately released on bail
from prison in connection with F. No. NCB/MZU/CR-
80/2021 (NDPS Special Case No. 23 of 2022);
(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 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 case
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of Union of India v. Chidiebere Kingsley Nawchara &
Ors.6
(iii) Applicant shall report to the Investigating Officer at
concerned Investigating Agency, 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 country without prior
permission of the Trial Court. Applicant is directed to
deposit his passport, if, any with the Trial Court within
a period of one week of their release from prison.
(vi) Applicant shall not influence with 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
6 SLIP (Cri) No.(s). 14185 of 2025
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of bail granted to the Applicant;
(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
20. 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.
21. Bail Application is 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
20:37:19 +0530
7 Criminal Appeal No. 2814-2815 of 2024 decided on 06.01.2025
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