Bombay High Court
GURJUGDIP SINGH SMAGH S/O JAGROOP SINGHversusTHE UNION OF INDIA AND ANR
- Decided
- Disposal
- Allowed
Holding
The court held that the prosecution failed to establish a prima facie nexus between the applicant and the contraband, and therefore bail was granted.
Summary
The applicant, Gurjugdip Singh Smagh, sought bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 439 of the CrPC for alleged offences under multiple provisions of the NDPS Act relating to the import of licorice roots contaminated with heroin. The prosecution’s case rested mainly on a confessional statement of another accused and the testimony of a customs clearing agent, alleging that the applicant transferred Rs.1.5 lakh for clearance of the consignment. The defence argued lack of any direct evidence, no money trail, and that the applicant had no antecedents, contending that the prosecution had not satisfied the twin tests of Section 37 NDPS. The court examined whether a reasonable nexus existed and concluded that the evidence was merely hearsay and insufficient to establish prima facie guilt. Consequently, the court allowed the bail application, granting bail with standard conditions and noting that the observations were limited to bail and not the merits of the case.
Issues considered
- The adequacy of the prosecution evidence to satisfy the prima facie requirement of Section 37 of the NDPS Act for bail denial.
- Whether the applicant’s alleged transfer of Rs.1.5 lakh establishes a reasonable nexus with the seized contraband.
- Whether the bail order should be cancelled for lack of reasons under Section 37 NDPS.
- Applicability of the Supreme Court precedent in State of Punjab v. Balraj Singh @ Billa to the present facts.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Code of Criminal Procedure, 1973 — s. 439
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 23, 27A, 28, 29, 30, 35, 37, 42, 67, 8(c)
Subjects
- bail
- NDPS Act
- prima facie
- drug trafficking
- Section 37
- contraband
- court discretion
Judgment
BA.966.2026.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.966 OF 2026
Gurjugdip Singh Smagh S/o. Jagroop Singh .. Applicant
Versus
The Union of India and Anr. .. Respondents
....................
Ms. Namasvi Bhanushali a/w. Mr. Mithilesh Mishra, Advocates for
Applicant.
Ms. Megha Bajoria, SPP a/w. Ms. Khushi P. Agarwal, Advocate for
Respondent No.1.
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 07, 2026
P.C.:
1. Heard Ms. Bhanushali, learned Advocate for Applicant and
Ms. Bajoria, learned SPP for Respondent No.1.
2. This is an Application under Section 483 of Bharatiya
Nagarik Suraksha Sanhita, 2023 / Section 439 of the Code of Criminal
Procedure, 1973 seeking Bail in connection with Crime
No.DRI/MZU/NS-II,INT-88/2012 registered with Directorate of
Intelligence for offences punishable under Sections 8(c), 21(c), 23,
27A, 28, 29, 30 and 35 of the Narcotic Drugs and Psychotropic
Substances Act 1985 (for short ‘NDPS Act’).
3. According to the First Information Report the date of alleged
incident is 19.09.2022. Applicant is arrested on 30.11.2022.
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4. Ms. Bhanushali, learned Advocate for Applicant would
submit that Applicant is a permanent resident of Ludhiana, Punjab and
is charged with offences under provisions of NDPS Act for allegedly
having imported licorice roots soaked in narcotic substances under Bill
of Lading dated 06.06.2021. She would submit that according to
prosecution the imported container was declared to contain licorice
roots of gross weight of 15,015 kg and having net weight of 13,500 kg.
She would submit that admittedly out of 436 bags contained in the
said container a few bags were selected and sample roots, wooden
sticks and twigs were removed for testing out of which some of them
tested positive for presence of heroin and some of them tested
negative. She would submit that nexus of Applicant to the contraband
is alleged on the basis of he having transmitted Rs. 1.5 Lakh to accused
No. 1’s Company account for clearing the container at the port of
discharge.
5. She would submit that in such a background, on the basis of
record there is prima facie non-compliance of Section 42 of the NDPS.
She would submit that Accused No.1 was arrested on 20.09.2022 and
his statement was recorded on that date under Section 67 of the NDPS
Act. She would submit that Accused No.1 named and disclosed name
of the Applicant for he having dealth with his about import and export
through a firm called Smagh Trading Company. She would submit
that according to the prosecution case through the Company of
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Accused No.1, the present Applicant alongwith Accused No.3 imported
a consignment of dry fruits from Afghanistan through a Shipping
Agency Company.
6. She would submit that case against Applicant is for transfer
of Rs. 1.5 Lakhs to Accused No.1 being cost for clearance of the said
imported consignment and the same having been paid by Accused
No.1 to the customs broker called Anand Kursija for clearing the
consignment. On the aforesaid factual background, according to
prosecution, Applicant is arraigned as Accused No.2.
7. Ms. Bhanushali would vehemently submit that the principal
mastermind for importing the consignment from Afghanistan was
Accused No.3, who is absconding. She would submit that Accused No.1
cleared the said consignment alongwith the Customs’ broker / Clearing
House Agent and there is no direct role attributed to the Applicant,
(Accused No.2) at all. She would submit that on 10.03.2025,
Applicant was released on bail. That copy of order is appended at
Exhibit - B, page No.518. She would submit that in the Criminal
Appeal filed to challenge the said order, the Supreme Court set aside
the said order on the ground that the grounds considered by the High
Court could not be the only grounds on which consideration of bail in
a henious crime was required. The order of Supreme Court is
appended at Exhibit - C page No.522. Hence on 16.12.2025, bail
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granted to Applicant was cancelled and he surrendered.
8. Both Ms. Bhanushali, learned Advocate for Applicant and
Ms. Bajoria, learned SPP for Respondent No.1 contend that since the
the order for grant of bail did not record the reasons under Section 37
of the NDPS Act, to the satisfaction of the Court, the bail order was
cancelled. Thus both the learned Advocates have argued on twin
conditions about satisfaction of the Court that there are reasonable
grounds for believing that the Accused is not guilty and that he is not
likely to commit the offence while on bail, need to be considered. Both
the learned Advocates done justice to their respective briefs and made
the respective submissions, rather forcefully.
9. Ms. Bhanushali would submit that apart from having no
antecedents, Applicant having deep roots in the Society, Applicant’s
indictment is based upon transfer of an amount of Rs.1.5 Lakhs to
Accused No.1 for clearance of the consignment, there is no other
theory propounded by the prosecution to show complicity of the
Applicant in the crime, in commission of the crime or to the shipment
of the goods. She would argue that prosecution's case is based on
generic assertions unrelated to the seizure in question and therefore
they are legally insufficient to satisfy the restrictions under Section 37
of the NDPS Act.
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10. She would submit that there is no seizure made from the
Applicant, no electronic trail leads to Applicant's complicity, no
documentary evidence to show Applicant’s role directly related to the
consignment in question or the other co-accused, and therefore merely
based on hearsay assertions, confessional statements and
unsubstantiated electronic material complicity of the Applicant cannot
be attributed.
11. She would argue that implication of Applicant on the basis of
witness statement without independent proof thereof cannot by itself
establish prima facie guilt which is the case herein. Hence she would
submit that both the twin tests namely, the rigors of Section 37 of the
NDPS Act prima facie stand satisfied in the facts of the present case.
12. PER CONTRA, Ms. Bajoria, learned SPP for Respondent No.1
would vehemently argue and submit that Applicant’s complicity is
prima facie established in importing the consignment. Hence, at the
outset, she would argue on conduct of the Applicant. She would
submit that role of the Applicant is explained by Custom House
Clearing Agent and his statement is appended at page No.632 of the
Application. She would submit that Applicant’s brother did not
disclose his name in the first statement but in a subsequent statement
after his arrest, Applicant’s name was disclosed. She would
vehemently argue that Applicant transferred Rs.1.5 Lakhs to the
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account of Accused No.1 for clearing the consignment thus establishing
his complicity. She would submit that the Custom House Agent
witness is an independent witness and therefore his statement has a
much higher degree of veracity.
13. Next, she would submit that the Chemical Analysis Report is
positive with regard to presence of contraband substance on the
licorice roots, stems and twigs in the seized consignment. She would
submit that considering the extent of the contraband seized, even
though long incarceration is pleaded as one of the grounds, there is
every likelihood that the Applicant will re-offend himself and therefore
considering the gravity of the crime and the humongous amount of
contraband seized, the same would not apply to grant of bail on the
ground of long incarceration.
14. She would submit that in the trial, prosecution though
desires to examine 40 probable witnesses, but endeavour is to examine
only 15 key witnesses and complete the trial within one year. She
would draw my attention to the decision of the Supreme Court in the
case of State of Punjab versus Balraj Singh @ Billa1, and more
specifically paragraph No.22 thereof, copy of which is appended at
page No.677 to contend that Supreme Court has repeatedly held and
stated that should there be any conflict between the sovereignty of the
1 Criminal Appeal No.___ of 2026 (@ Special Leave Petition (Crl.) No.896 of 2026) decided on
02.06.2026
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country and personal liberty, undoubtedly the sovereignty of the
Country shall prevail particularly when a war is waged against the
nation be it in the form of supply of drugs which vitally affects the
national economy and health of the people or otherwise. Hence, she
would submit that the Bail Application be dismissed and if possible,
appropriate directions be given to complete the trial within one year.
15. I have heard Ms. Bhanushali, learned Advocate for Applicant
and Ms. Bajoria, learned SPP for Respondent No.1 and with their able
assistance, perused the record of the case.
16. Prima facie, the only evidence of indictment qua the
Applicant in question is the confessional statement of Accused No.1
and a hearsay evidence of one witness who is the Custom House
Clearing Agent. Prima facie, whether the amount of Rs.1.5 Lakhs
transferred for clearing the consignment was with regard to clearance
of the said consignment or otherwise to establish the complicity of the
Applicant, will be a matter of trial. This is the only material which the
prosecution has referred to for establishing nexus.
17. Prosecution case, prima facie shows that Applicant was
instrumental in importing the contraband for which he transferred
Rs.1.5 Lakhs to Accused No.1 but it also establishes the fact, prima
facie, that he had taken back the said amount. This is undoubtedly a
matter of trial. Trial has not commenced in the past more than four
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years. The factum of Applicant being in conscious and culpable
possession of the contraband or otherwise directly involved in
importing the contraband when no recovery is effected from him or no
material is placed on record to show his nexus is nothing but
speculative and inferential and therefore, it gives rise to a reasonable
ground to believe that the Applicant is not guilty, thus satisfying the
first condition under Section 37 of the NDPS Act in the present case.
18. This prima facie guilt of the Applicant cannot be based upon
a mere confessional statement and a mere witness statement when the
prosecution story is of direct nexus to the humongous contraband
seized. The second condition about Applicant likely to commit or
repeat the same offence while on bail can be considered on the ground
that Applicant has no antecedents. He is based in Ludhiana, Punjab
and is into business and has deep roots in society.
19. The learned SPP has been heard fully and though it may be
true that a humongous contraband is seized, the prosecution has failed
to prima facie show a reasonable nexus to enable me to accept the
prosecution case at this stage. In that view of the matter, prosecution
may be otherwise right with regard to the observations made by the
Supreme Court in the case of State of Punjab Vs. Balraj Singh @ Billa
(supra), but it cannot be made applicable to the facts in the present
case in a generic sense in the absence of prima facie material and
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hence, prosecution has fallen short of establishing a direct nexus of the
Applicant with the seizure of the alleged contraband.
20. Most importantly prosecution has not been able to establish
any money trail qua the seized contraband attributable to the
Applicant with any of the other accused before me. Applicant is
already incarcerated for a substantial period of more than 4 years in
jail. Applicant has prima facie satisfied the threshold and twin tests for
the bar of Section 37 under the NDPS Act to apply in the present case
on the aforesaid prima facie findings. Having expressed such prima
facie findings, I am of the opinion that continuation of incarceration of
the Applicant is not required. The Application for bail stands allowed
and the Applicant is granted bail subject to following conditions:-
(i) Applicant is directed to be immediately released from
prison in connection with Crime No.DRI/MZU/NS-
II,INT-88/2012;
(ii) Applicant is directed to be released on bail on
furnishing P.R. Bond of Rs. 50,000/- (Rs. Fifty
Thousand only) with one or two surety / sureties of the
like amount;
(iii) Applicant shall report to the Investigating Officer at the
concerned Police Station, once every month on the first
Monday of the month between 10:00 a.m. to 12:00
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p.m.;
(iv) Applicant shall co-operate with the conduct of trial and
attend the hearing before Trial Court on all hearing
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 and shall deposit his
passport with the Trial Court within one week of his
release from jail;
(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.
21. 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
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uninfluenced with any of the prima facie observations made
hereinabove in this order.
22. Bail Application is allowed and disposed of in the above
terms.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
Digitally signed by
HARSHADA HARSHADA
HANUMANT
HANUMANT SAWANT
SAWANT Date: 2026.09.07
11:42:56 +0530
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