Bombay High Court
FAISAL @ DADI SHAFI SHAIKHversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The Court held that the applicant is entitled to bail despite the commercial quantity, on account of the undue delay in trial and the absence of prior NDPS antecedents.
Summary
Faisal @ Dadi Shafi Shaikh, arrested on 14‑10‑2024, was charged under Sections 8(c), 22(c) and 29 of the NDPS Act for possession of 99.05 g of contraband, a commercial quantity. He has been in custody for 1 year 10 months while the trial has not commenced, whereas co‑accused No. 2 and No. 3 have already been released on bail. The applicant sought bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, arguing that the prolonged pre‑trial detention violated his right to liberty. The Court examined the stringent test of Section 37 NDPS Act, but placed weight on the undue delay, lack of prior NDPS antecedents, and several Supreme Court and High Court precedents granting bail in similar circumstances. Relying on the principle that bail may be granted on a prima‑facie assessment of non‑guilt and to avoid punitive detention, the Court allowed the bail application with standard conditions.
Issues considered
- Whether bail can be granted under Section 37 of the NDPS Act despite the alleged possession of a commercial quantity of narcotics.
- Whether the prolonged pre‑trial detention of an under‑trial accused justifies the grant of bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
- Whether the court can rely on a prima‑facie determination of non‑guilt to override the statutory embargo of Section 37.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Code of Criminal Procedure, 1973 — s. 436, 436-A, 437, 439
- Indian Penal Code, 1860 — s. 323
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 22(c), 29, 37, 8(c)
Subjects
- bail
- NDPS Act
- commercial quantity
- under‑trial detention
- Section 37 NDPS
- Section 483 BNSS
- Article 21
- delay in trial
Judgment
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
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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
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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
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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
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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
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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
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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
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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. ]
Digitally signed
by RAVINDRA
RAVINDRA MOHAN
AMBERKAR
MOHAN Date:
AMBERKAR 2026.09.10
14:55:31
+0530
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