Bombay High Court
ABHISHEK ANIL NAGWADEversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The Court held that despite the non‑bailable nature of commercial‑quantity NDPS offences, bail may be granted where long incarceration and lack of risk of re‑offending satisfy the statutory and constitutional requirements.
Summary
The High Court considered bail applications filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by Vaibhav Sanjeevan Chede (23) and Abhishek Anil Nagwade (24), who were accused under Sections 8(c) and 20(c) of the NDPS Act for possession of 97.895 kg of ganja, a commercial quantity. Both applicants had been in custody for over two years without trial, had no prior criminal record, and the trial was expected to be prolonged due to a large number of witnesses. The Court examined the stringent provisions of Section 37 of the NDPS Act, which makes such offences non‑bailable unless the public prosecutor is satisfied of reasonable grounds for release, but emphasized the constitutional right to speedy trial under Article 21 and the principle that bail is the rule and jail the exception. Citing extensive jurisprudence on bail, the Court concluded that the long pre‑trial detention justified granting bail, provided the applicants complied with strict conditions. Accordingly, bail was granted on a personal bond of Rs.50,000 with sureties and several reporting and non‑interference conditions, and the applications were disposed.
Issues considered
- The applicability of Section 37 of the NDPS Act to bail for offences involving commercial quantity of narcotics.
- Whether prolonged pre‑trial detention violates the accused's right to speedy trial under Article 21, warranting bail.
- Whether the public prosecutor's opposition, if any, satisfies the statutory conditions for bail under the NDPS Act.
- Whether the applicants are likely to flee, tamper with evidence, or commit further offences if released on bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. Section 483
- Code of Criminal Procedure, 1973
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. Section 20(c), Section 37, Section 8(c)
Subjects
- bail
- NDPS Act
- commercial quantity
- right to speedy trial
- Article 21
- undertrial detention
- Section 37
- prison overcrowding
- presumption of innocence
Judgment
19.BA.4095.2025 and BA.4097.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 4095 OF 2025
Vaibhav Sanjeevan Chede .. Applicant
Versus
State of Maharashtra .. Respondent
WITH
BAIL APPLICATION NO. 4097 OF 2025
Abhishek Anil Nagwade .. Applicant
Versus
State of Maharashtra .. Respondent
....................
Mr. Satyavrat Joshi a/w. Mr. Nawaz Dordi, Advocates i/by Mr.
Samay Pawar for Applicants.
Mr. Sukanta A. Karmakar, APP for Respondent – State.
Mr. Balaji Losarwar, PSI Kamshet Police Station, Pune Rural
present.
......…...........
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 25, 2026.
P.C.:
1. Heard Mr. Joshi, learned Advocate for Applicants and Mr.
Karmakar, learned APP for Respondent– State.
2. These Applications are filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 seeking bail in
connection with C.R. No.174 of 2025 registered under Section 8(c)
and 20(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(for short ‘NDPS Act’).
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3. In the present Bail Applications, Applicants are young
offenders aged 23 and 24 years old and in custody for the past more
than 2 years, pending trial. They have no antecedents. Applicant in
Bail Application No.4095 of 2025 is apprehended alongwith other
accused persons from the hired car wherein contraband of 97.895 kgs.
of ganja is recovered. Car was hired in the name of Applicant in Bail
Application No.4097 of 2025 though he was not present in the car.
4. Without delineating any opinion on the merits lest it would
affect the ongoing trial which has now commenced and one witness
having already been examined by the prosecution, in view of the long
incarceration of the Applicants for more than 2 years and the trial not
being concluded in the near future, I am inclined to consider the
present Bail Applications of Applicants for grant of bail on the ground
of long incarceration and the trial not having commenced.
5. In the case of Sandeep Kumar Bafna Vs. State of
Maharashtra1, the Supreme Court in paragraph No.25 has observed the
following:-
“25. The upshot of this analysis is that no vested right is
granted to a complainant or informant or aggrieved party to
directly conduct a prosecution. So far as the Magistrate is
concerned, comparative latitude is given to him but he must
always bear in mind that while the prosecution must remain
being robust and comprehensive and effective it should not
abandon the need to be free, fair and diligent. So far as the
Sessions Court is concerned, it is the Public Prosecutor who
must at all times remain in control of the prosecution and a
counsel of a private party can only assist the Public Prosecutor
1 (2014) 16 SCC 623
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in discharging its responsibility. The complainant or informant
or aggrieved party may, however, be heard at a crucial and
critical juncture of the Trial so that his interests in the
prosecution are not prejudiced or jeopardized. It seems to us
that constant or even frequent interference in the prosecution
should not be encouraged as it will have a deleterious impact on
its impartiality. If the Magistrate or Sessions Judge harbours the
opinion that the prosecution is likely to fail, prudence would
prompt that the complainant or informant or aggrieved party be
given an informal hearing. Reverting to the case in hand, we are
of the opinion that the complainant or informant or aggrieved
party who is himself an accomplished criminal lawyer and who
has been represented before us by the erudite Senior Counsel,
was not possessed of any vested right of being heard as it is
manifestly evident that the Court has not formed any opinion
adverse to the prosecution. Whether the Accused is to be
granted bail is a matter which can adequately be argued by the
State Counsel. We have, however, granted a full hearing to Mr.
Gopal Subramanium, Senior Advocate and have perused
detailed Written Submissions since we are alive to impact that
our opinion would have on a multitude of criminal trials.”
6. 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.
7. 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.
9. It is seen that while dealing with Bail Applications the
material available for consideration and adjudication is limited. 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. This Court regularly deals with Bail Applications of under-
trials who have been in custody for long incarceration, and is also
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equally aware of the conditions of our prisons. To give an example in
the city of Mumbai, a Report dated 12.12.2024 made by the
Superintendent of Mumbai Central Prison addressed to the Chief
Government Pleader was placed before this Court by the Public
Prosecutor which stated that the Mumbai Central Prison (Arthur Road
Jail) is overcrowded beyond its sanctioned capacity by more than 5 – 6
times and every barrack sanctioned to house 50 inmates, as on date
houses anywhere between 220 – 250 inmates. This situation is similar
in almost all jails in the State. Such an incongruity leads us to answer
the proposition: “How can Courts find a balance between the two
polarities?"
10. Argued before me is a case concerning liberty of under-trials
who have been incarcerated for more than two years, a situation
impacting the rights of the 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 pending trial, 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.
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11. In the case of Emperor Vs. H.L. Hutchinson2, the Allahabad
High Court, as far back as in the year 1931 held that power of granting
bail conferred on High Court is entirely unfettered by any conditions. It
held that legislature has given the High Court and the Court of Session
discretion unfettered by any limitation other than that which controls
all discretionary powers vested in a Judge, viz. that the discretion must
be exercised judiciously. The Court has given primacy to the fact that
accused person if granted bail will be in a much better position to
defend himself. In this very case, it was delineated that grant of Bail is
the Rule and refusal is an exception. This was in the famous Meerut
Conspiracy case. Justice Mukherjea writing for the Bench in paragraph
No.9 held as under:-
“9. Speaking for myself, I think it very unwise to make an
attempt to lay down any particular rules for the guidance of the
High Court, having regard to the fact that the legislature itself
left the discretion of the Court entirely unfettered. The reason
for this action on the part of the legislature is not far to seek.
The High Court might be safely trusted in this matter and it
goes without saying that it would act in the best interests of
justice whether it decides in favour of the prosecution or the
defence. The variety of cases that may arise from time to time
cannot be safely classified and it will be dangerous to make an
attempt to classify the cases and to say that in particular classes
a bail may be granted but not in other classes.”
12. In the case of Satender Kumar Antil Vs. Central Bureau of
Investigation3, in paragraph Nos.6 to 15 the Supreme Court considered
the prevailing situation of prisons in India, definition of trial and bail,
principle of presumption of innocence and reiterated the well
2 AIR 1931 ALL 356
3 (2022) 10 SCC 51
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recognised principle that bail is the rule and jail is the exception in bail
jurisprudence on the touchstone of Article 21 of the Constitution of
India. Paragraph Nos.6 to 15 of the judgment reads as under:-
“Prevailing situation
6. Jails in India are flooded with undertrial prisoners. The
statistics placed before us would indicate that more than 2/3rd
of the inmates of the prisons constitute undertrial prisoners. Of
this category of prisoners, majority may not even be required to
be arrested despite registration of a cognizable offence, being
charged with offences punishable for seven years or less. They
are not only poor and illiterate but also would include women.
Thus, there is a culture of offence being inherited by many of
them. As observed by this Court, it certainly exhibits the
mindset, a vestige of colonial India, on the part of the
investigating agency, notwithstanding the fact arrest is a
draconian measure resulting in curtailment of liberty, and thus
to be used sparingly. In a democracy, there can never be an
impression that it is a police State as both are conceptually
opposite to each other.
Definition of trial
7. The word “trial” is not explained and defined under the
Code. An extended meaning has to be given to this word for the
purpose of enlargement on bail to include, the stage of
investigation and thereafter. Primary considerations would
obviously be different between these two stages. In the former
stage, an arrest followed by a police custody may be warranted
for a thorough investigation, while in the latter what matters
substantially is the proceedings before the court in the form of a
trial. If we keep the above distinction in mind, the consequence
to be drawn is for a more favourable consideration towards
enlargement when investigation is completed, of course, among
other factors.
8. Similarly, an appeal or revision shall also be construed as
a facet of trial when it comes to the consideration of bail on
suspension of sentence.
Definition of bail
9. The term “bail” has not been defined in the Code, though
is used very often. A bail is nothing but a surety inclusive of a
personal bond from the accused. It means the release of an
accused person either by the orders of the court or by the police
or by the investigating agency.
10. It is a set of pre-trial restrictions imposed on a suspect
while enabling any interference in the judicial process. Thus, it
is a conditional release on the solemn undertaking by the
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suspect that he would cooperate both with the investigation and
the trial. The word “bail” has been defined in Black's Law
Dictionary, 9th Edn., p. 160 as:
“A security such as cash or a bond; esp., security required
by a court for the release of a prisoner who must appear in
court at a future time.”
11. Wharton's Law Lexicon, 14th Edn., p. 105 defines “bail” as:
“to set at liberty a person arrested or imprisoned, on
security being taken for his appearance on a day and at a
place certain, which security is called bail, because the
party arrested or imprisoned is delivered into the hands of
those who bind themselves or become bail for his due
appearance when required, in order that he may be safely
protected from prison, to which they have, if they fear his
escape, etc. the legal power to deliver him.”
Bail is the rule
12. The principle that bail is the rule and jail is the exception
has been well recognised through the repetitive
pronouncements of this Court. This again is on the touchstone
of Article 21 of the Constitution of India. This Court in Nikesh
Tarachand Shah v. Union of India [Nikesh Tarachand Shah v.
Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] ,
held that : (SCC pp. 22-23 & 27, paras 19 & 24)
“19. In Gurbaksh Singh Sibbia v. State of Punjab
[Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 : 1980 SCC (Cri) 465] , the purpose of granting bail is
set out with great felicity as follows : (SCC pp. 586-88,
paras 27-30)
‘27. It is not necessary to refer to decisions which
deal with the right to ordinary bail because that
right does not furnish an exact parallel to the right
to anticipatory bail. It is, however, interesting that
as long back as in 1924 it was held by the High
Court of Calcutta in Nagendra Nath Chakravarti, In
re [Nagendra Nath Chakravarti, In re, 1923 SCC
OnLine Cal 318 : AIR 1924 Cal 476] , AIR pp. 479-
80 that the object of bail is to secure the attendance
of the accused at the trial, that the proper test to be
applied in the solution of the question whether bail
should be granted or refused is whether it is
probable that the party will appear to take his trial
and that it is indisputable that bail is not to be
withheld as a punishment. In two other cases which,
significantly, are the “Meerut Conspiracy cases”
observations are to be found regarding the right to
bail which deserve a special mention. In K.N.
Joglekar v. Emperor [K.N. Joglekar v. Emperor,
1931 SCC OnLine All 60 : AIR 1931 All 504] it was
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observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code,
that it conferred upon the Sessions Judge or the
High Court wide powers to grant bail which were
not handicapped by the restrictions in the preceding
Section 497 which corresponds to the present
Section 437. It was observed by the court that there
was no hard-and-fast rule and no inflexible principle
governing the exercise of the discretion conferred by
Section 498 and that the only principle which was
established was that the discretion should be
exercised judiciously. In Emperor v. H.L. Hutchinson
[Emperor v. H.L. Hutchinson, 1931 SCC OnLine All
14 : AIR 1931 All 356] , AIR p. 358 it was said that
it was very unwise to make an attempt to lay down
any particular rules which will bind the High Court,
having regard to the fact that the legislature itself
left the discretion of the court unfettered. According
to the High Court, the variety of cases that may arise
from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases
and to say that in particular classes a bail may be
granted but not in other classes. It was observed that
the principle to be deduced from the various
sections in the Criminal Procedure Code was that
grant of bail is the rule and refusal is the exception.
An accused person who enjoys freedom is in a much
better position to look after his case and to properly
defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled
to freedom and every opportunity to look after his
own case. A presumably innocent person must have
his freedom to enable him to establish his
innocence.
28. Coming nearer home, it was observed by
Krishna Iyer, J., in Gudikanti Narasimhulu v. Public
Prosecutor [Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115]
that : (SCC p. 242, para 1)
“1. … the issue [of bail] is one of liberty,
justice, public safety and burden of the public
treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially
sensitised judicial process. … After all, personal
liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of
“procedure established by law”. The last four
words of Article 21 are the life of that human
right.”
29. In Gurcharan Singh v. State (Delhi Admn.)
[Gurcharan Singh v. State (Delhi Admn.), (1978) 1
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SCC 118 : 1978 SCC (Cri) 41] it was observed by
Goswami, J., who spoke for the Court, that : (SCC p.
129, para 29)
“29. … There cannot be an inexorable formula
in the matter of granting bail. The facts and
circumstances of each case will govern the
exercise of judicial discretion in granting or
cancelling bail.”
30. In American Jurisprudence (2nd Edn., Vol. 8,
p. 806, para 39), it is stated:
“Where the granting of bail lies within the
discretion of the court, the granting or denial
is regulated, to a large extent, by the facts and
circumstances of each particular case. Since
the object of the detention or imprisonment of
the accused is to secure his appearance and
submission to the jurisdiction and the
judgment of the court, the primary inquiry is
whether a recognizance or bond would effect
that end.”
It is thus clear that the question whether to
grant bail or not depends for its answer upon a
variety of circumstances, the cumulative effect
of which must enter into the judicial verdict.
Any one single circumstance cannot be treated
as of universal validity or as necessarily
justifying the grant or refusal of bail.’
* * *
24. Article 21 is the Ark of the Covenant so far as the
Fundamental Rights Chapter of the Constitution is
concerned. It deals with nothing less sacrosanct than the
rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental
Rights Chapter (along with Article 20) that cannot be
suspended even in an emergency [see Article 359(1) of the
Constitution]. At present, Article 21 is the repository of a
vast number of substantive and procedural rights post
Maneka Gandhi v. Union of India [Maneka Gandhi v.
Union of India, (1978) 1 SCC 248] .”
13. Further this Court in Sanjay Chandra v. CBI [Sanjay
Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 :
(2012) 2 SCC (L&S) 397] , has observed that : (SCC p. 52, paras
21-23)
“21. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure
the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be
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considered a punishment, unless it is required to ensure
that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and
duly found guilty.
22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could be a
cause of great hardship. From time to time, necessity
demands that some unconvicted persons should be held in
custody pending trial to secure their attendance at the trial
but in such cases, “necessity” is the operative test. In this
country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty upon
only the belief that he will tamper with the witnesses if left
at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the
object of refusal of bail, one must not lose sight of the fact
that any imprisonment before conviction has a substantial
punitive content and it would be improper for any court to
refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to
refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.”
Presumption of innocence
14. Innocence of a person accused of an offence is presumed
through a legal fiction, placing the onus on the prosecution to
prove the guilt before the court. Thus, it is for that agency to
satisfy the court that the arrest made was warranted and
enlargement on bail is to be denied.
15. Presumption of innocence has been acknowledged
throughout the world. Article 14(2) of the International
Covenant on Civil and Political Rights, 1966 and Article 11 of
the Universal Declaration of Human Rights, 1948 acknowledge
the presumption of innocence, as a cardinal principle of law,
until the individual is proven guilty.”
13. The Supreme Court in a landmark decision of 1978 in the
case of Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor, High
Court of Andhra Pradesh4 observed as under:-
4 1978 (1) SCC 240
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“6. Let us have a glance at the pros and cons and the true
principle around which other relevant factors must revolve.
When the case is finally disposed of and a person is sentenced to
incarceration, things stand on a different footing. We are
concerned with the penultimate stage and the principal rule to
guide release on bail should be to secure the presence of the
applicant who seeks to be liberated, to take judgment and serve
sentence in the event of the court punishing him with
imprisonment. In this perspective…” (emphasis supplied)
14. Thereafter the Supreme Court in a plethora of judgements
have discussed the rights conferred by Article 21 qua grant of bail and
that such rights cannot be taken away unless the procedure is
reasonable and fair and in cases where there is unreasonable delay in
trial it would undoubtedly impact the rights of an undertrial. Some of
the important decisions of the Supreme Court and some of the High
Courts are discussed herein under:-
14.1. In the landmark judgment of Maneka Gandhi Vs. Union of
India5, the Supreme Court held that the right to life and personal
liberty under Article 21 is not limited to mere animal existence but
includes the right to live with dignity. The court emphasized that the
procedure established by law must be fair, just, and reasonable, and it
cannot be arbitrary, oppressive, or unreasonable.
14.2. In the case of Hussainara Khatoon Vs. Home Secy., State of
Bihar6 the Supreme Court held as under:-
“Now obviously procedure prescribed by law for depriving a
person of liberty cannot “reasonable, fair or just” unless that
procedure ensures a speedy trial for determination of the guilt
5 1978 (1) SCC 248
6 (1980) 1 SCC 81
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of such person. No procedure which does not ensure a
reasonably quick trial can be regarded as “reasonable, fair or
just” and it would fall foul of Article 21. There can, therefore, be
no doubt that speedy trial, and by speedy trial we mean
reasonably expeditious trial, is an integral and essential part of
the fundamental right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to what would
be the consequence if a person accused of an offence is denied
speedy trial and is sought to be deprived of his liberty by
imprisonment as a result of a long delayed trial in violation of
his fundamental right under Article 21.”
14.3. The Supreme Court in the case of Shaheen Welfare
Association Vs. Union Of India7 dealing with a Public Interest Litigation
seeking relief for undertrial prisoners charged under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 due to gross delay in
disposal of cases qua Article 21 of the Constitution of India held as
under:-
10. Bearing in mind the nature of the crime and the need to
protect the society and the nation, TADA has prescribed in
Section 20(8) stringent provisions for granting bail. Such
stringent provisions can be justified looking to the nature of the
crime, as was held in Kartar Singh’s case (supra), on the
presumption that the trial of the accused will take place without
undue delay. No one can justify gross delay in disposal of cases
when undertrials perforce remain in jail, giving rise to possible
situations that may justify invocation of Article 21.”
14.4. The Supreme Court in the case of Union of India v. K. A.
Najeeb8 while commenting upon the possibility of early completion of
trial and extended incarceration held as under:-
“18. Adverting to the case at hand, we are conscious of the fact
that the charges levelled against the respondent are grave and a
7 1996 SCC (2) 616
8 Criminal Appeal No. 98 of 2021
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serious threat to societal harmony. Had it been a case at the
threshold, we would have outrightly turned down the
respondent's prayer. However, keeping in mind the length of the
period spent by him in custody and the unlikelihood of the trial
being completed anytime soon, the High Court appears to have
been left with no other option except to grant bail. An attempt
has been made to strike a balance between the appellant's right
to lead evidence of its choice and establish the charges beyond
any doubt and simultaneously the respondent's rights
guaranteed under Part III of our Constitution have been well
protected.”
15. Applicants in present case have been in custody for more
than two years. There is no possibility of the trial concluding in the
near future as there are 160 probable witnesses to be examined by the
prosecution. Detaining an under-trial prisoner for such an extended
period further violates his fundamental right to speedy trial flowing
from Article 21 of the Constitution. At this juncture, I deem it
appropriate to list certain observations of the Supreme Court shedding
light on concerns underlying the “Right to speedy trial” from the point
of view of an accused in custody whose liberty is affected. In the case
of Abdul Rehman Antulay & Ors. Vs R.S. Nayak & Anr. 9 the Supreme
Court held as under:-
“86. In view of the above discussion, the following propositions
emerge, meant to serve as guidelines. We must forewarn that
these propositions are not exhaustive. It is difficult to foresee all
situations. Nor is it possible to lay down any hard and fast rules.
These propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of
the Constitution creates a right in the accused to be tried
speedily. Right to speedy trial is the right of the accused. The
fact that a speedy trial is also in public interest or that it serves
the societal interest also, does not make it any-the-less the right
of the accused. It is in the interest of all concerned that the guilt
9 1992 (1) SCC 225
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or innocence of the accused is determined as quickly as possible
in the circumstances.
(2) Right to Speedy Trial flowing from Article 21 encompasses
all the stages, namely the stage of investigation, inquiry, trial,
appeal, revision and retrial. That is how, this Court has
understood this right and there is no reason to take a restricted
view.
(3) The concerns underlying the Right to speedy trial from the
point of view of the accused are:
(a) the period of remand and pre-conviction detention should be
as short as possible. In other words, the accused should not be
subjected to unnecessary or unduly long incarceration prior to
his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation
and peace, resulting from an unduly prolonged investigation,
inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of
the accused to defend himself, whether on account of death,
disappearance or non-availability of witnesses or otherwise.
(4) – (11) -------x-------” (emphasis supplied)
16. The Supreme Court has also held in a series of judgments
and orders that in situations where the under-trials / accused persons
have suffered incarceration rather long incarceration for a 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 persons under-trial on bail, as bail is the rule
and jail is the exception.
17. In the case of Supreme Court Legal Aid Committee
(Representing undertrial prisoners) Vs. Union of India 10, the Supreme
Court has held that:-
“17. We are conscious of the fact that the menace of drug
trafficking has to be controlled by providing stringent
10 (1995) 4 SCC 695
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punishments and those who indulge in such nefarious activities
do not deserve any sympathy. But at the same time we cannot
be oblivious to the fact that many innocent persons may also be
languishing in jails if we recall to mind the percentage of
acquittals. Since harsh punishments have been provided for
under the Act, the percentage of disposals on plea of guilt is
bound to be small; the State Government should, therefore,
have realised the need for setting up sufficient number of
Special Courts immediately after the amendment of the Act by
Amendment Act 2 of 1989. Even after the Division Bench of the
Bombay High Court refused to grant en bloc enlargement on
bail on 1-2-1993 in Criminal Application No. 3480 of 1992 and
B.D. Criminal No. 565 of 1992, no substantial improvement in
the pendency is shown since new cases continue to pour in, and,
therefore, a one-time exercise has become imperative to place
the system on an even keel. We also recommend to the State
Government to set up Review Committees headed by a Judicial
Officer, preferably a retired High Court Judge, with one or two
other members to review the cases of undertrials who have been
in jail for long including those released under this order and to
recommend to the State Government which of the cases deserve
withdrawal. The State Government can then advise the Public
Prosecutor to move the court for withdrawal of such cases. This
will not only. help reduce the pendency but will also increase
the credibility of the prosecuting agency. After giving effect to
this order the Special Court may consider giving priority to cases
of those undertrials who continue in jail despite this order on
account of their inability to furnish bail.”
18. Considering Applicants age, if they are enlarged on bail
Court is hopeful that Applicants’ family will undoubtedly do their duty
to make every effort and attempt to reform and aid the Applicants in
leading a reformed life while on bail rather than keep them in prison
and expose them to criminal outlook and life in prison. However on
the flip side, if a chance is given to the Applicants because of their
young ages by enlarging them on bail, there is a possibility that they
will be remorseful and repent in retrospect. This is a chance required
to be taken by the Court because punishment has to be believed to be
inflicted for a reformative result rather than being punitive in nature.
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19. Undoubtedly the trial will determine the complicity of
Applicants in the offence. While considering Bail Applications in such
facts, Court feels that reform and rehabilitation of the under trial
accused needs to be considered especially when age of the accused
persons are young so that the accused persons gets an opportunity / or
is given an opportunity to reform, rehabilitate and earn his livelihood
honorably from the perspective of social integration. This is a chance
which the Court must take considering the young age of accused
persons. The age of the Applicants are very young. If the Applicants are
incarcerated in prison further, there is every possibility that they might
lose faith in the institution and society at large and may tread the path
of criminality or would waste his life. Incarceration in prison exposes
many youth to abuse as is shown statistically.
20. There are several harms of incarceration which are inflicted
disproportionately on the youth. This is the reason why Court feels that
any / every semblance of a chance towards a reformative approach in
punishment should be adopted, especially in the case of young
offenders. Hence every opportunity or to that extent risk should be
constructively taken by the Court in the case of young offenders –
accused before committing such accused to further custody and give
such accused an opportunity to become a good citizen in the Society.
These observations are only in the view of the young age of the
Applicants before me and it is only a means to explore an alternative to
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incarceration so that the Applicants can become a good citizen.
21. Applicants are incarcerated for more than 2 years. There is
no distinct possibility of the trial being concluding in the near
foreseeable future. Hence, in view of my aforesaid prima facie
observations and judicial pronouncements, Bail Applications are
allowed subject to the following conditions:-
22. The Applicants are directed to be released on the following
conditions:-
(i) Both Applicants are directed to be immediately released
from prison in connection with Crime No.174 of 2025;
(ii) Applicants are directed to be released on bail on
furnishing P.R. Bond of Rs.50,000/- (Rs. Fifty Thousand
only) each with one or two surety of the like amount;
(iii) Applicants shall report to the Investigating Officer at
concerned Police Station, once every month on the first
Monday of the month between 10:00 a.m. to 12:00
p.m.;
(iv) Applicants 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 they does so it will entitle the
prosecution to apply for revocation of this order;
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(v) Applicants shall not leave the State of Maharashtra
without prior permission of the Trial Court;
(vi) Applicants shall not influence with any of the witnesses
or tamper with the evidence in any manner;
(vii) Applicants shall keep the Investigating Officer informed
of their 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 Applicants.
23. 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.
24. Both Bail Applications are allowed and disposed of in the
above terms.
[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed by
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.08.25
20:47:18 +0530
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