CRISTIAN SOPORUCHUKWU vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
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CRL.P No. 16286 of 2025
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 07 DAY OF MAY, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL PETITION No.16286 OF 2025 (439(Cr.PC) /
483(BNSS)
BETWEEN:
CRISTIAN SOPORUCHUKWU
S/O. UCHEGWAM,
AGED ABOUT 44 YEARS,
PRESENTLY R/AT NO.16,
SONU’S NEST APARTMENT,
TH TH
5 G CROSS, 5 MAIN,
SRY LAYOUT, BEGURU KOPPA ROAD,
MAILSANDRA, (VADDARAPALLY)
JIGANI POST
BENGALURU - 560 083
(NOW IN JUDICIAL CUSTODY)
…PETITIONER
(BY SRI BALAKRISHNA M R, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BEGUR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE 560 001.
…RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HIGH COURT GOVERNMENT
PLEADER)
Digitally signed
by MALATESH
K C
Location: HIGH
COURT OF
KARNATAKA
THIS CRL.P IS FILED UNDER SECTION 439 CR.PC (FILED
U/S 483 BNNS) PRAYING TO RELEASING THE PETITIONER ON
BAIL PENDING TRIAL IN CR.No.79/2025 (SPL.CC.No.1648/
2025) REGISTERED BY THE RESPONDENT BEGUR POLICE
STATION FOR THE ALLEGED OFFENCES PUNISHABLE UNDER
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CRL.P No. 16286 of 2025
SECTIONS 8(c), 22(A), 22(B) AND 22(C) OF NDPS ACT NOW
PENDING ON THE FILE OF HON’BLE XXXIII ADDL. CITY CIVIL
AND SESSIONS JUDGE AND SPL.JUDGE FOR NDPS CASES AT,
BENGLAURU.
THIS PETITION HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
CAV ORDER
Present petition is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, with the following
prayer:
“WHEREFORE, the petitioner/accused above
named humbly prays that this Hon’ble Court be pleased
to pass an order releasing the petitioner on bail
pending trial in Crime No.79/2025 (Spl.CC
No.1648/2025) registered by the respondent Beguru
Police Station, for the alleged offences punishable u/S
8(c), 22(A), 22(B), and 22(C) of NDPS Act now
pending on the file of Hon’ble XXXIII Addl. City Civil
and Sessions Judge and Spl. Judge for NDPS cases at
Bengaluru in the interest of justice and equity.”
2. Facts of the case which are utmost necessary for disposal
of the present petition are as under:
Beguru Police, Electronic City Sub Division, Bengaluru
City, registered a case in Crime No.79/2025 on 05.04.2025.
2.1 Gist of the complaint averments would reveal that
Sri K.Lakshminarayana, being the Police Inspector of Anti
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CRL.P No. 16286 of 2025
Narcotic Wing, Central Crime Branch, Bengaluru, received a
credible information on 05.04.2025 that an African citizen is in
the process of selling MDMA crystals to his known customers
near Begur lake, AECS layout road.
2.2 Based on such information, Sri K.Lakshminarayan,
being the Police Inspector, Anti Narcotic Wing, formed a raid
team comprising of himself, Sri Lokesh (H.C-13009), Sri
Mahesh S (HC-10602), Sri Harinath N (HC-11227)
(videographer) along with two panch witnesses by name
Kamaruddin and Kushal Chatri.
2.3 At about 11.00 pm, the entire raid team including
panchas moved in a Government Vehicle bearing No.KA-02/G-
1521 and parked the vehicle little away from the place as per
the information and got down from the jeep.
2.4 At that juncture, a person(informant) showed a
person who was standing by the side of a two wheeler on the
tank bund. Immediately the raid team rushed towards him. On
seeing the raid party, said person tried to run away from the
spot.
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CRL.P No. 16286 of 2025
2.5 However, sub staff could chase and apprehended
him. It was around 11.15 p.m. Head of the raid party got
introduced him by conversing with the said person in English
language.
2.6 On enquiry, he revealed his name as Cristian
Soporuchukwu, S/o Uchegwam and that he is residing at
th th
Sonu's Nest Apartment, 5 G Cross, 5 Main, SRY Layout,
Beguru Koppa Road, Mailsandra (Vaddarapally), Jigani Post,
Bengaluru-560 083 and he is the native of Nigeria. He also
provided his telephone number.
3. Thereafter, head of the raid party, further enquired him
and at that juncture he revealed himself that he is Nigerian
citizen and he came to India under business visa for cloth
business. Thereafter, he moved to Goa, Delhi, Mumbai and got
acquainted with the drug peddlers of South African origin and
used to purchase the MDMA crystals from them for cheaper
price and used to sell the same to College students, ITBT
employees at the rate of Rs.15,000/- to Rs.20,000/- per gram.
He also revealed that he has got about 1 kg of MDMA crystals
in the dicky box of his two wheeler.
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CRL.P No. 16286 of 2025
4. It was also enquired with him that whether he has got
any pass or permit to possess the MDMA crystals. After noting
that he has no such pass or permit, the raid party proceeded to
the two wheeler and seized the MDMA crystals from the dicky
box of the two wheeler. The raid party also seized a pocket
electronic weighing machine and ten zip lock covers, a pink
coloured plastic bag, a grey coloured Samsung Galaxy Mobile
telephone handset and two wheeler bearing registration No.
TN-36/AF-6707.
5. Photographs were taken and thereafter the entire
proceedings was videographed. Panchamma was drafted.
Accused was taken to custody.
6. After taking the accused into custody, Sri
Lakshminarayan, handed over the same to the Beguru Police
Station along with seized materials, who in turn arrested the
accused and issued arrest memo and the ground of arrest
which reads as under.
“GROUND OF ARREST
This is to inform you that, in Bengaluru city Beguru Police
Station Cr.No.79/2025 u/S 8(c), 22(a), 22(b), 22(c) NDPS
Act-1985, you are arraigned as accused. This case
related to illegal sales of Narcotic Drugs. During the
course of investigation, based on available evidence and
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CRL.P No. 16286 of 2025
your voluntary statement. Your complicity in the offence is
revealed and your role in the crime is prime facie found.
In this regard, you are being arrested on date:06.04.2025
at 00.55 am in the above mentioned case. You will be
th
produced before the Hon’ble 9 ACJM Court, Bengaluru
City.
Investigation Officer
Sd/-
Police Sub Inspector
Begur Police Station
Bangalore City”
7. Later on, accused was produced before the jurisdictional
Judge.
8. Pertinently, when accused was produced, learned Judge
has enquired the accused, wherein he has stated that there is
no complaint of any ill-treatment by the police.
9. He has specifically stated that he has been arrested on
06.04.2025 at about 00.45 a.m. and police have informed
about his arrest to his friend namely Aaffam.
10. Learned Judge has also noted that the Investigation
Officer has followed the guidelines of the Hon'ble Apex Court
while effecting the arrest. An advocate by name ‘NM’ was also
present and he has filed power for the accused after obtaining
the permission of the Court to take his signature. However,
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CRL.P No. 16286 of 2025
learned advocate has not chosen to file any application for bail
and therefore, accused was sent to judicial custody till
17.04.2025.
11. Thereafter, accused applied for grant of bail in C.Misc.No.
9369/2025. Learned Judge who entertained the bail application
in C.Misc.No.9369/2025 after hearing the parties, considered
the rival contentions of the parties and dismissed the bail
request holdings in paragraphs 14 and 15 as under:
“14. This Court has gone through the decisions relied by
the learned counsel for accused including the latest
decision rendered by the Hon'ble Supreme Court in
Cr.Appeal No.2195/2025 in the case of Mihir Rajesh Shah
Vs., State of Maharashtra. On going through this decision,
the Hon'ble Apex Court in detail dealt with the matter by
relying on earlier decisions in the case of Pankaj Bansal
and Prabir Purkayastha, in the case of Vihaan Kumar and
finally observed that in the case of Pankaj Bansal and
Prabir Purkayastha needs to be read harmoniously with
the case of Vihaan Kumar which provides as a general rule
that grounds of arrest are not mandated to be
communicated in writing. However, in the latest decision
of Mihir Rajesh Shah , the Hon'ble Apex Court held as
under:-
“56. In conclusion, it is held that:
i) The constitutional mandate of informing the
arrestee the grounds of arrest is mandatory in all
offences under all statutes including offences
under IPC 1860 (now BNS 2023); ii) The grounds
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CRL.P No. 16286 of 2025
of arrest must be communicated in writing to the
arrestee in the language he/she understands;
iii) In case(s) where, the arresting officer/person
is unable to communicate the grounds of arrest in
writing on or soon after arrest, it be so done
orally. The said grounds be communicated in
writing within a reasonable time and in any case at
least two hours prior to production of the arrestee
for remand proceedings before the magistrate.
iv) In case of non-compliance of the above, the
arrest and subsequent remand would be rendered
illegal and the person will be at liberty to be set
free.”
and finally in the said decision it is observed that in the
facts of the case we have no hesitation in holding that the
arrest of the appellant was rendered illegal on account of
failure to communicate the grounds of arrest to the
appellant as mandated by article 22(1) of the constitution.
However, in the case on hand though learned counsel
vehemently argued that the vague grounds of arrest had
been communicated to the accused, in the grounds of
arrest the alleged offence and role of accused in
committing the offence has been mentioned. At the same
time the accused had also signed the said grounds of
arrest. It cannot be considered that the arrest of accused
has not been informed to any of the persons known to the
accused and there is separate memo for having informed
the arrest of the accused to his friend Aaffam through his
Mobile No.918197935423. When the accused has signed
these two documents it has to be presumed that on going
through the documents and by understanding the
contents of those documents he has signed the
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documents. Therefore, in the present case it cannot be
said that the grounds of arrest is not in consonance with
the article 22(1) of the Constitution.
15. During the course of arguments the learned PP
submitted that the accused was arrested on 5.4.2025 and
the decision in Mihir Rajesh Shah case is later decision
than the date of arrest of the accused, that in the said
decision no where it is mentioned that it has retrospective
effect, but this Court does not agree with the arguments
advanced by the learned PP because in the present
decision the principles laid in the earlier decisions has
been reiterated and in the present decision also it is held
that the article 22(1) mandates the serving of grounds of
arrest to the arrestee. When Article 22(1) of Constitution
of India mandates communication of grounds of arrest to
the arrestee, then one cannot submit that the said
decision is not applicable to the earlier case which are
registered prior to 6.11.2025. In the opinion of this Court
the principles laid down in the aforesaid decision is
applicable to all the cases even the apprehension of the
accused is earlier than 6.11.2025. 10 CCH-33
Crl.Misc.No.9369/2025 However, on facts the present
case on hand differs from the case narrated in the
aforesaid decision. In the present case on hand the
raiding officer has issued grounds of arrest in English
language which is known to him and the accused has
signed the said grounds of arrest. Further, since the arrest
of accused has been informed to his friend the arrest is
not illegal and thus as per the requirement of Sec.37 of
NDPS Act, 1985, burden is on the petitioner to satisfy the
Court that there are reasonable grounds to believe that he
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CRL.P No. 16286 of 2025
is not guilty of the offence for which he has been charged
and that he is not likely to commit any offence if benefit of
bail is extended to him, but no material has been placed
on record for the fulfillment of these conditions. There is
prima-facie material available against the petitioner in
regard to the possession of narcotic drug. Furthermore,
earlier the petitioner has filed similar petition on the same
grounds, the same was rejected. Now, again he has filed
this petition without any new grounds for grant of bail.
The learned counsel for petitioner has failed to place any
new grounds to grant bail. In the result, this Court
proceeds to hold that the petitioner has not made out any
grounds to entertain his plea for bail. Accordingly, this
Court answers point No. 1 in the Negative.”
12. Pertinently, the only ground that is now urged before this
Court is that there was no ‘ground of arrest’ furnished to the
accused. Therefore, bail is to be granted to the
petitioner/accused, since the said ground was not considered
by the learned Judge while rejecting the bail request.
13. Being aggrieved by the same, accused is before this
Court, on the following grounds.
“It is submitted that the Petitioner was arrested by the
Respondent Police on 06.04.2025 at about 12.45 p.m.,
on the allegation that he was in possession of
contraband MDMA crystal weighing 1 Kg and other
articles and subsequently he was produced before the
Hon'ble IX AJCM Court, at Bengaluru on 06.04.2025,
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who remanded him to Judicial Custody till 17.04.2025
and now the charge sheet has been filed against the
Petitioner and same is pending before the Hon'ble
XXXIII Addl. District and Sessions Judge and Spl. Judge
for NDPS cases at Bengaluru, in Spl.C.No.1648/2025.
It is submitted that nowhere in the remand application
or in the order sheet it was mentioned that the alleged
grounds of arrest was communicated to his relative or
friend or any other person nominated by him, apart
from the arrestee by the arresting officer at the time of
his arrest or two hours prior to his production before
the Learned Magistrate, in consonance with the law laid
down by the Hon'ble Apex Court in the case of Vihaan
Kumar V/s. State of Haryana & another and
subsequent judgment of Hon'ble Apex Court in the case
of Mihir Rajesh Shaw V/s. State of Maharashtra in
Crl.A.No.2195/2025 dated 06.11.2025. In the said
judgements, the Hon'ble Apex Court has categorically
held that grounds of arrest has to be communicated not
only to the arrestee by the arresting officer but it has to
be communicated to his relative or friend or any other
person nominated by him. In the case on hand,
absolutely the prosecution has not produced any
materials to show that the grounds of arrest was
communicated effectively and meaningfully in
consonance with the dictum of the Hon'ble Apex Court
in the above referred judgements, on this ground alone
the Petitioner is entitled for bail.
It is submitted that since the alleged grounds of arrest
is not in consonance with the Apex Court rulings, the
arrest and subsequent remand of the Petitioner is
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illegal and vitiated his arrest and subsequent remand
order and the Petitioner is entitled for bail without
touching the merits of the case.
It is submitted that violation of statutory provisions or
Constitutional mandates, overrides the statutory
restrictions governed u/s. 37 of the NDPS Act for
granting bail, as such there is no legal embargo to
grant the bail based on the violation of statutory
provisions which are governed u/s. 47 of BNSS 2023,
52(1) of the NDPS Act and under Article 22 (1) of the
Constitution of India.
It is submitted that the Petitioner is ready and willing to
offer adequate surety for his due appearance before
this Hon'ble Court and he will not abscond and tamper
with prosecution witness and he will abide by any
condition that may be imposed by this Hon'ble Court in
the facts and circumstances of the present case. He
undertakes to be present before this Hon'ble Court on
all the future dates of hearing without fail and He will
cooperate with this Hon'ble Court for speedy
investigation. He has no criminal antecedents except
the present one, no other criminal case is pending
against him.”
14. Sri M.R.Balakrishna, learned counsel for the petitioner,
reiterating the grounds urged in the petition, vehemently
contented that the Hon'ble Apex Court in the case of Vihan
Kumar vs. State of Haryana and others reported in
(2025)5 SCC 799 has held that, non-furnishing of the proper
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grounds of arrest would vitiate the very arrest itself as it is
against the mandate of Article 22 of the Constitution of India
and therefore, petitioner is entitled for grant of bail.
15. He would further contend that the principles of law
enunciated in the case of Vihan Kumar supra in paragraph 26
was the subject matter of consideration before the Hon'ble
Supreme Court again in the case of Mihir Rajesh Shah vs.
State of Maharashtra and another reported in (2026)1
SCC 500 wherein the Hon'ble Apex Court has reiterated the
principles of law in paragraph No.512d, 513b-c, 520e, 521a,
524d and thus, wherever there is violation of mandatory
requirement of furnishing of the grounds of arrest, the very
arrest itself would be illegal and such persons must be set at
free forthwith.
16. He would further submit that the conclusions reached by
the Hon'ble Apex Court in Vihan Kumar and Mihir Rajesh
Shah supra in para 66 would make out a case for grant of bail
to the petitioner.
17. Sri Balakrishna, learned counsel would further emphasize
that in the case of Ahmed Mansoor and others vs. The
State rep. by Assistant Commissioner of Police and
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another reported in 2025 SCC Online SC 2650, the Hon'ble
Apex Court again reiterated the principles as to grounds of
arrest is a sine qua non and non compliance of furnishing of the
grounds of arrest would make out a case for grant of bail.
18. In that regard, he invited the attention of this Court to
paragraph 5 which reads as under:
“5. The aforesaid position has been reiterated in Prabir
Purkayastha v. State (NCT of Delhi), (2024) 8 SCC
254 : (2024) 3 SCC (Cri) 573 as stated under:
“45. We are of the firm opinion that once this Court
has interpreted the provisions of the statute in
context to the constitutional scheme and has laid
down that the grounds of arrest have to be conveyed
to the accused in writing expeditiously, the said ratio
becomes the law of the land binding on all the courts
in the country by virtue of Article 141 of
the Constitution of India.
46. Now, coming to the aspect as to whether the
grounds of arrest were actually conveyed to the
appellant in writing before he was remanded to the
custody of the investigating officer.
47. We have perused the arrest memo (Annexure P-
7) and find that the same nowhere conveys the
grounds on which the accused was being arrested.
The arrest memo is simply a proforma indicating the
formal “reasons” for which the accused was being
arrested.
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48. It may be reiterated at the cost of
repetition that there is a significant difference
in the phrase “reasons for arrest” and “grounds
of arrest”. The “reasons for arrest” as indicated
in the arrest memo are purely formal
parameters viz. to prevent the accused person
from committing any further offence; for proper
investigation of the offence; to prevent the
accused person from causing the evidence of
the offence to disappear or tampering with
such evidence in any manner; to prevent the
arrested person for making inducement, threat
or promise to any person acquainted with the
facts of the case so as to dissuade him from
disclosing such facts to the court or to the
investigating officer. These reasons would
commonly apply to any person arrested on
charge of a crime whereas the “grounds of
arrest” would be required to contain all such
details in hand of the investigating officer
which necessitated the arrest of the accused.
Simultaneously, the grounds of arrest informed
in writing must convey to the arrested accused
all basic facts on which he was being arrested
so as to provide him an opportunity of
defending himself against custodial remand
and to seek bail. Thus, the “grounds of arrest”
would invariably be personal to the accused
and cannot be equated with the “reasons of
arrest” which are general in nature.”
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19. Sri Balakrishna also places his reliance on the judgment
of the Hon'ble Apex Court in the case of Dr.Rajinder Rajan
vs. Union of India and another in SLP (Crl.) No. 3326 of
2026 dated 01.04.2026 wherein, the principles of law Mihir
Rajesh Shah has been reiterated and allowed the appeal.
20. He invited the attention of this Court to paragraph Nos.22
and 23, which reads as under:
“ 22. On going through the arrest memo, we find that it
has been prepared in a template format and contains a
statement to the effect that the arresting officer had
explained the grounds of arrest to the accused before the
arrest. Thus, the arrest memo, by itself, reflects that the
grounds of arrest had been orally explained to the
accused before the process of formal arrest was
undertaken. Consequently, it was incumbent upon the
arresting officer to have supplied the memo of grounds of
arrest in writing to the accused two hours prior to
producing them before the Magistrate as per the mandate
of Mihir Rajesh Shah (supra) which apparently has not
been followed in this case.
23. In the wake of the above discussion, we are of the
firm view that the appellants are entitled to be released
from custody by giving them the benefit of the ratio laid
down in Mihir Rajesh Shah (supra). Accordingly, it is
hereby directed that the appellants shall be released on
bail forthwith, subject to furnishing bail bonds to the
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satisfaction of the trial Court and such other conditions as
it may deem fit to impose.”
21. He would further contend that the petitioner therein i.e.,
Dr.Rajinder Rajan was also accused of offences under
Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS
Act’ for short) and therefore, this petitioner is entitled to grant
of bail.
22. Per contra , learned High Court Government Pleader
opposes the bail petition by contending that petitioner has
overstayed in this Country than his period of validity of visa.
23. He would further emphasize that admittedly petitioner is
a Nigerian citizen who visited this Country for carrying out the
business under business visa and very fact that he remained in
this Country without proper documentation would expose the
intention of the petitioner.
24. He would also bring to the notice of this Court that
seizure of one kilograms of MDMA crystals from the vehicle
possessed by the accused in the presence of panch witnesses
would be sufficient enough to reject the bail request of the
petitioner by resorting to Section 37 of the NDPS Act.
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25. It is also specific contention of the State that the arrest
memo is duly supplied to the petitioner and when he was
produced before the learned Trial Judge, there was an enquiry
by the learned Trial Judge about the communication of arrest.
26. He would point out that petitioner has not raised any
objection at that juncture with regard to non-furnishing of the
arrest memo or non-communication of the arrest to his kith and
kin.
27. Therefore, the contentions now raised before this Court
that there is no proper communication of the grounds of arrest
cannot be countenanced in law and sought for dismissal of the
petition.
28. In the light of the rival contentions of the parties, this
Court bestowed its best attention to the material on record.
29. On such anxious consideration, it is noticed that
petitioner/accused is admittedly citizen of Nigeria and he has
overstayed than the period of validity of visa. He visited this
Country under business visa about eight years earlier and has
managed to stay in this Country without proper documents. As
such, he is per se illegal immigrant.
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30. Seized MDMA in the case on hand, as per the seizure
mahazar is to the tune of 1 (one) kilograms.
31. Pertinently 1 gram of MDMA is sold at the rate of
Rs.15,000/- to Rs.20,000/-. Thus, seizure of 1 kg MDMA itself
is significant in appreciating the case of the prosecution in
opposing the bail request by the petitioner.
32. Since the seized MDMA is commercial quantity, Section
37 of NDPS Act would be applicable to the case on hand. For
reference, Section 37 is extracted hereunder:
“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
3[offences under section 19 or section 24 or section
27A 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.
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(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.”
33. It is to be borne in mind that Section 37 of NDPS Act
would get attracted only in respect of commercial quantity of
the NDPS. Legislature in its wisdom has therefore employed
specific words, whereby it is the accused who is required to
establish before the Court that he is not guilty of the offences
alleged against him.
34. It is also to be borne in mind that while considering the
bail request, grounds of the bail petition must emphasize that
there are reasonable grounds to believe that accused is not
guilty of the offences alleged against him in contrast to the
innocence of the accused as per the constitutional mandate in
respect of other offences under Indian Penal Code or Bharatiya
Nyaya Sanhita.
35. In fact, a person who is accused of an offence of murder
which is highly heinous would enjoy the presumption that he is
held to be innocent until contrary is proved by prosecution.
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Such presumption of innocence is taken away in respect of a
person who is accused of possessing or transporting
commercial quantity of NDPS.
36. In this regard, this Court gainfully places reliance on the
principles of law enunciated by the Hon'ble Apex Court in the
case of Union of India vs. Ram Samujh and another
reported in (1999)9 SCC 429 wherein, at paragraph 7 it is
held as under:
“ 7. It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered to and followed. It
should be borne in mind that in a murder case, the
accused commits murder of one or two persons, while
those persons who are dealing in narcotic drugs are
instrumental in causing death or in inflicting death-blow to
a number of innocent young victims, who are vulnerable;
it causes deleterious effects and a deadly impact on the
society; they are a hazard to the society; even if they are
released temporarily, in all probability, they would
continue their nefarious activities of trafficking and/or
dealing in intoxicants clandestinely. Reason may be large
stake and illegal profit involved. This Court, dealing with
the contention with regard to punishment under the NDPS
Act, has succinctly observed about the adverse effect of
such activities in Durand Didier v. Chief Secy., Union
Territory of Goa [(1990) 1 SCC 95 : 1990 SCC (Cri) 65]
as under: (SCC p. 104, para 24)
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“24. With deep concern, we may point out that the
organised activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal
trafficking in such drugs and substances have led to
drug addiction among a sizeable section of the
public, particularly the adolescents and students of
both sexes and the menace has assumed serious and
alarming proportions in the recent years. Therefore,
in order to effectively control and eradicate this
proliferating and booming devastating menace,
causing deleterious effects and deadly impact on the
society as a whole, Parliament in its wisdom, has
made effective provisions by introducing this Act 81
of 1985 specifying mandatory minimum
imprisonment and fine.”
37. Insertion of provision of law as per Section 37 of NDPS
Act is not without purpose. The same is intended to curb the
menace of drug transporting, possessing, peddling etc., which
is harming the youth of this Country.
38. Likewise, Court is also required to find out that if the
accused is granted bail, there is no likelihood of accused
committing a similar crime.
39. In other words, unlike any other offences, the grounds
that is mentioned in the bail petition must be sufficient enough
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to persuade the Court that petitioner would have a fair chance
of an acquittal as being not guilty.
40. With the above object in the background, when the
material on record is analyzed, it is noticed that seized NDPS is
placed before the jurisdictional Court vide necessary PF memo.
Sample is also taken out from the seized quantity of NDPS.
41. Pertinently one kilogram of MDMA is not a freely available
commodity in the market so as to implant the same by the
police to falsely implicate the accused in the incident.
42. Further, grounds of bail petition referred to supra would
not make out that there existed a previous enmity or animosity
between the head of the raid party and the accused.
43. Therefore, this Court does not find any good reasons to
grant the bail on merits of the matter.
44. As such, counsel for the petitioner has now taken shelter
under non-furnishing of the grounds of arrest to seek the bail.
45. The said argument cannot also be countenanced in law
inasmuch as in the case on hand, grounds of arrest was
furnished to the petitioner as referred to supra. It is not also in
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the template form either. Petitioner being Nigerian citizen,
investigation officer took necessary precaution to furnish the
grounds of arrest in English language.
46. One has to bear in mind the difference between grounds
of arrest and reasons to arrest, as is held by the Hon'ble
Supreme Court in the case of Ahmed Mansoor supra.
47. In the case on hand, when the petitioner was found with
one kilogram of MDMA, which was kept in his two wheeler box
beneath the seat, all that the head of the raid party did is to
seize the same and took the petitioner to custody. Head of the
raid party also seized mini electronic weighing machine, mobile
handset and two wheeler bearing registration No.TN-36/AF-
6707.
48. Later on, he handed over the custody of the petitioner,
seized material objects to the Station House Officer who in turn
has effected the arrest after issuing the arrest memo as
referred to supra.
49. In other words, actual arrest has taken place in the police
station and not by the head of the raid party. While taking the
accused to custody no other formalities are to be carried out by
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the head of the raid party. It is to be noted that the mandatory
requirement of furnishing grounds of arrest is, when the
petitioner is to be arrested, inasmuch as, in every custody
there need not be arrest, but, in every arrest would necessarily
follow custody.
50. There is no loss of time in producing the petitioner before
the learned Judge after the arrest.
51. Learned Judge also enquired the accused as to any
harassment/ill-treatment, by the police. In fact, accused was
produced in the open Court in the presence of an advocate by
name ‘NM’.
52. Accused has voluntarily answered to the learned Judge
that there was no ill-treatment and his arrest has been
informed to his friend.
53. Taking note of these aspects of the matter, this Court is
of the concerned opinion that in the case on hand, the grounds
of arrest furnished to the accused is sufficient compliance of
mandatory requirement as per Article 22 of the Constitution of
India.
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54. Further, in respect of a commercial quantity of the seized
NDPS the approach of the Court while considering the bail
request, is no longer res integra .
55. Hon’ble Apex Court, in the case of Narcotics Control
Bureau vs. Kashif reported in (2024)11 SCC 372, after
considering catena of decisions rendered earlier, in the light of
Section 37 in respect of seized NDPS is of commercial quantity,
in paragraph Nos.9 to 12, has held as under:
“9. There has been consistent and persistent view of this
Court that in the NDPS cases, where the offence is
punishable with minimum sentence of ten years, the
accused shall generally be not released on bail. Negation
of bail is the rule and its grant is an exception. While
considering the application for bail, the court has to bear
in mind the provisions of Section 37 of the NDPS Act,
which are mandatory in nature. The recording of finding
as mandated in Section 37 is a sine qua non for granting
bail to the accused involved in the offences under the said
Act.
10. Apart from granting the opportunity of hearing to the
Public Prosecutor, the other two conditions i.e. (i) the
satisfaction of the court that there are reasonable grounds
for believing that the accused is not guilty of the alleged
offence, and that (ii) he is not likely to commit any
offence while on bail, are the cumulative and not
alternative conditions.
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11. In State of M.P. v. Kajad [State of M.P. v. Kajad,
(2001) 7 SCC 673 : 2001 SCC (Cri) 1520] , this Court
while considering the scope of Section 37 in the light of
the scheme of the Act, had observed that: (SCC pp. 675-
76, para 5)
“5. … A perusal of Section 37 of the Act leaves no
doubt in the mind of the court that a person accused
of an offence, punishable for a term of imprisonment
of five years or more, shall generally be not released
on bail. Negation of bail is the rule and its grant an
exception under sub-clause (ii) of clause (b) of
Section 37(1). For granting the bail the court must,
on the basis of the record produced before it, be
satisfied that there are reasonable grounds for
believing that the accused is not guilty of the
offences with which he is charged and further that he
is not likely to commit any offence while on bail. It
has further to be noticed that the conditions for
granting the bail, specified in clause (b) of sub-
section (1) of Section 37 are in addition to the
limitations provided under the Code of Criminal
Procedure or any other law for the time being in
force regulating the grant of bail. Liberal approach in
the matter of bail under the Act is uncalled for.”
(emphasis supplied)
12. Similarly, recently a three-Judge Bench in Narcotics
Control Bureau v. Mohit Aggarwal [Narcotics Control
Bureau v. Mohit Aggarwal, (2022) 18 SCC 374] ,
considering the earlier judgments on the parameters of
bail available under Section 37 of the said Act held that:
(SCC p. 381, para 19)
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“19. … The length of the period of his custody or the
fact that the charge-sheet has been filed and the trial
has commenced are by themselves not
considerations that can be treated as persuasive
grounds for granting relief to the respondent under
Section 37 of the NDPS Act.”
56. In other words, in case of an accused who has been
alleged with the possession of commercial quantity of the
NDPS, negation of bail is the rule and grant is an exception is
to be borne in mind.
(emphasis supplied)
57. Likewise, in a recent judgment in the case of State of
Punjab vs. Sukhwinder Singh reported in 2026 SCC Online
SC 671 , taking note of the principles of law enunciated in the
case of Kashif supra, in paragraph 9 their Lordships have held
as under:
“9. It is well-settled that in matters involving recovery of
contraband in commercial quantity, the twin conditions
under Section 37(1)(b)(ii) of the NDPS Act are mandatory
and entail no relaxation merely on the ground that the
accused has undergone prolonged incarceration during the
pendency of trial. The provision casts upon the Court a
duty to record, before enlarging an accused on bail, its
satisfaction on two cumulative conditions, first, that there
exist reasonable grounds for believing that the accused is
not guilty of the offence charged; and second, that he is
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not likely to commit any offence while on bail. The
recording of such satisfaction is not a mere formality but a
mandatory pre-condition, the non-observance of which
vitiates the grant of bail. This Court, in Kashif (supra), has
held in no uncertain terms that the recording of
satisfaction on the twin conditions under Section 37 is
mandatory and not merely directory, and that an order
granting bail without such recorded satisfaction stands
vitiated and cannot be sustained. The same view stands
reiterated in Lalrintluanga Sailo (supra).”
58. Pertinently, before the Hon'ble Apex Court, in the case of
Sukhwinder Singh supra, on behalf of accused, Mihir Rajesh
Shah, Dr.Rajinder Rajan were also cited. Thereafter, the
Hon'ble Apex Court allowed the appeal of the State and
cancelled the bail granted to accused by the High Court and
directed the accused to surrender before the Trial Court.
59. In other words, while on one hand, non furnishing of
grounds of arrest, or improper compliance of furnishing the
grounds of arrest would be a good ground for grant of bail in all
offences, on the other hand, where the accused is alleged of
possessing commercial property of NDPS, would not be
permitted to gain a back door entry in getting the bail on the
ground of improper compliance of furnishing grounds of arrest,
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especially when he has failed to make out a ground for grant of
bail by resorting to Section 37 of the NDPS Act.
60. In view of the foregoing discussion, since the grounds
urged in the bail petition are not sufficient to admit the
petitioner on bail by resorting to Section 37 of the NDPS Act
and also taking note of the fact that the petitioner being the
Nigerian citizen and has over stayed than the period of visa this
Court is of the considered opinion that no grounds are made
out by the petitioner much less good grounds to accede to his
request.
61. As such, the following:
ORDER
Criminal Petition is dismissed .
Sd/-
(V SRISHANANDA)
JUDGE
kcm