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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

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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