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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

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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