Bombay High Court
AGU PASCAL UZOCHUKWU @ KELECHI ONYEMAversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The Court granted bail to the accused, subject to stringent conditions, despite the non‑bailable nature of the NDPS offence.
Summary
The Bombay High Court considered a bail application filed by foreign national Agu Pascal Uzochukwu, accused of offences under Sections 8(c) r/w 22(b) and 29 of the NDPS Act, alleging he sold an intermediate quantity of narcotics. The applicant argued that the investigation violated Sections 42, 50 and 52 of the NDPS Act because a police naik conducted a personal search and a gazetted officer was absent, and that the charge sheet lacked a chemical analysis report. He also highlighted his prolonged pre‑trial detention of over three years, the limited examination of prosecution witnesses, and invoked the right to speedy trial under Article 21. The Court examined the stringent bail provisions of Section 37 of the NDPS Act and surveyed numerous Supreme Court and High Court precedents where bail was granted to under‑trials detained for long periods despite commercial quantities of contraband. Balancing the statutory restrictions with the constitutional right to liberty, the Court held that bail could be granted subject to strict conditions. Accordingly, the bail application was allowed and the applicant was released on bond with several surety and reporting requirements.
Issues considered
- The investigation complied with mandatory provisions of Sections 42, 50 and 52 of the NDPS Act.
- Whether a foreign national accused of an offence punishable under the NDPS Act involving an intermediate quantity can be granted bail despite Section 37's non‑bailable regime.
- Whether the prolonged pre‑trial detention violates the accused's right to speedy trial under Article 21.
- Whether the lack of a chemical analyzer report and limited witness examination affect the merit of the bail application.
Legislation cited
- Criminal Procedure Code
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 22(b), 29, 37, 42, 50, 52, 8(c)
Subjects
- bail
- NDPS Act
- Section 37
- foreign national
- long pre‑trial detention
- speedy trial
- Article 21
- search and seizure
- procedural compliance
Judgment
14.BA.3546.2026.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3546 OF 2026
Agu Pascal Uzochukwu @ Kelechi Onyema .. Applicant (Accused No.1)
Versus
The State of Maharashtra .. Respondent
....................
Mr. Shekhar S. Bhandary i/by Mr. Karthik S. Bhandary, Advocates
for Applicant.
Ms. Rajeshree V. Newton, APP for Respondent - State.
................…
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 22, 2026
P.C.:
1. Heard Mr. Bhandary, learned Advocate for Applicant and
Ms. Newton, learned APP for Respondent - State.
2. By this Bail Application, Applicant is seeking enlargement on
bail in C.R. No.449 of 2023 registered with Panvel City Town Police
Station for the offences punishable under Sections 8(c) r/w 22(b), and
29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short
“NDPS Act”).
3. The Applicant is one of the two accused persons, arraigned
as Accused No.1. Applicant is a foreign national. The case of the
prosecution is that on receiving secret information Applicant alongwith
Accused No.2 were intercepted wherein Applicant was the seller of the
alleged contraband substance also there is recovery of the contraband
substance which is of intermediate quantity (27 grams) at the instance
of the Applicant, which can be seen from the record. However, it is
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seen that the compliance of provisions under Section 42 and Section
50 are not in accordance with law. A police naik is given no right
whatsoever to take personal search as he is not an empowered officer
under the NDPS Act. Time and again this court has passed orders and
frowned upon the prosecution for committing such derelictions.
4. Further it is seen that Applicant has been incarcerated for the
past 3 years 1 months 22 days. Chargesheet has been filed however
Chemical Analyzer Report has not been placed on record which raises
cloud of suspicion on the case of prosecution. It is seen that Section 52
of NDPS Act notice thereby informing “grounds of arrest” has been
issued in common for both the accused persons. It is further seen that
prosecution desires to examine 11 witnesses, however till today only
one prosecution witness has been examined.
5. 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 the personal search of the
Accused persons is made by a police naik which is seen from the
record.
1 2025:BHC-AS:10527
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6. Non compliance of Section 50 is another aspect which is
prima facie seen in the present case when a Gazetted Officer is
required to be part of the raiding team. Merely because Applicant is a
foreigner and the trial has just commenced and only one witness has
been examined, it cannot be a ground to keep Applicant in jail when
there is no progress shown in the trial. The Applicant is incarcerated
for the past 3 years 1 months 22 days. The trial will take its own sweet
time to conclude. In view of the above, Applicant has made out a case
for grant of bail on the ground of merits as also long incarceration.
7. 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:-
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“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;
(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. ”
8. 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
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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.
9. Argued before me is a case concerning liberty of an under-
trial who has been incarcerated for almost 3 years 1 months 22 days, 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.
10. 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.
11. In the following decisions of the Supreme Court and various
High Courts concerning such long detention and imprisonment of
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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:-
11.1. In the case of Rabi Prakash Vs. State of Odisha2 the Supreme
Court, considering the long incarceration of an undertrial accused who
was incarcerated for 3 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 247 Kilograms was allegedly
made from the accused despite which the court invoking the right to
speedy justice flowing from Article 21 and foreseeable delay in trial
granted bail to the accused.
11.2. In the case of Dheeraj Kumar Vs. State of Uttar Pradesh 3 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.
2 2023 SCC OnLine SC 1109
3 2023 SCC OnLine 918
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11.3. In the case of Balkishan Vs. State of Madhya Pradesh4 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.
11.4. In the case of Badsha Sk. Vs. State of West Bengal5 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.
11.5. In the case of Man Mandal and Anr. Vs. State of West Bengal 6
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.
11.6. In the case of Ankur Chaudhary Vs. State of Madhya
Pradesh7 the Supreme Court considering long incarceration of an
undertrial-accused granted him bail to an undertrial-accused who was
4 Petition for Special Leave to Appeal (Cri) No. 8415 of 2024
5 2023 SCC OnLine SC 1867
6 2023 SCC OnLine SC 1868
7 Petition for Special Leave to Appeal (Cri) No. 4648 of 2024
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incarcerated for about 2 years.
11.7. In the case of Nitish Adhikary alias Bapan Vs. State of West
Bengal8 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.
11.8. In the case of Babor Ali Mondal Vs. State of West Bengal9 the
Supreme Court considering the long incarceration granted bail to an
undertrial-accused who was incarcerated for 1 year and 4 months.
11.9. In the case of Sukhvinder Singh Bittu Vs. State of Punjab10
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.
11.10. In the case of Tinku Vs. State (NCT of Delhi)11 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
8 2022 SCC OnLine SC 2068
9 Criminal Appeal No. 3349 of 2024
10 Cri. Appeal No.1204 of 2024
11 2024 SCC OnLine Del 9132
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speedy justice flowing from Article 21 of the Constitution and
forceeable delay in trial granted bail to the accused.
11.11. In the case of Kulwinder Singh Vs. State of Punjab12 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
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.
11.12. In the case of Amey Sanjay Jadhav Vs. State of Maharashtra13
this Court on 03.01.2025 considering long incarceration of the
undertrial-accused has granted bail to the undertrial accused who was
incarcerated for 2 years and 11 months. The contraband in question
was 1.3 kilograms of Charas, the commercial quantity of which is 1000
grams.
11.13. In the case of Mohd. Mobin Jahurul Hasan Manihar Vs. State
of Maharashtra14 - 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.
12 CRM-M-26704 of 2024
13 BA No.911 of 2024 decided on 03.01.2025
14 BA No.713 of 2024 decided on 20.01.2025
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12. 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.
13. In view of the above prima facie observation and judicial
pronouncements, Bail Application is allowed subject to the following
terms and conditions:-
(i) Applicant - Agu Pascal Uzochukwu @ Kelechi Onyema
is directed to be immediately released from prison in
connection with C.R. No. 449 of 2023;
(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
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 &
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Ors.15
(iii) Applicant shall report to the Investigating Officer at
Panvel City Town 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
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
15 SLP (Cri) No(s). 14185 of 2025
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(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.16.
14. 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
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.
15. Bail Application is allowed and disposed of in the above
terms.
[ MILIND N. JADHAV, J. ]
Digitally signed
by AJAY
TRAMBAK
AJAY UGALMUGALE
TRAMBAK
UGALMUGALE Date:
2026.09.23
20:45:58
+0530
16 Criminal Appeal No.2814-2815 of 2024 decided on 06.01.2025.
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