Long incarceration and delayed trial do not override Section 37’s bail bar in commercial-quantity NDPS cases.

The applicant was arrested on 16 July 2022 in connection with C.R. No. III-04 of 2022 registered at the ATS Police Station, Ahmedabad, for offences under Sections 8(c), 21(c), 23(c) and 29 of the NDPS Act, concerning the alleged import and trafficking of approximately 75 kg and 300 gms of heroin valued at approximately ₹376.50 crores.

The contraband was seized at Mundra Port.

The applicant contended that there was no recovery from him, that he had not visited Mundra Port, and that his alleged role was limited to forwarding import-export licence details to co-accused persons through WhatsApp.

The investigation was complete and the chargesheet had been filed; however, out of 49 prosecution witnesses, only three had been examined.

The applicant had remained in custody for more than four years.

His earlier regular-bail application had been rejected on 11 December 2023.

Whether the applicant had established a substantial change in circumstances warranting reconsideration of his successive regular-bail application.

Whether, despite the alleged prolonged incarceration and slow progress of the trial, the applicant satisfied the twin conditions under Section 37(1)(b) of the NDPS Act for release on bail in a case involving commercial quantity.

Whether the applicant’s alleged limited role, absence of recovery from his possession, and reliance on statements, call-detail records and WhatsApp communications created reasonable grounds to believe that he was not guilty of the alleged offences.

The Court exercised jurisdiction under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and applied Sections 8(c), 21(c), 23(c) and 29 of the NDPS Act.

Since the alleged recovery involved commercial quantity, the restrictions under Section 37(1)(b) of the NDPS Act applied: the prosecution must be heard, and the Court must be satisfied that there are reasonable grounds to believe that the accused is not guilty and is unlikely to commit an offence while on bail.

“Reasonable grounds” require credible and substantial grounds, not merely prima facie grounds, as held in Narcotics Control Bureau v. Mohit Aggarwal and State of Kerala v. Rajesh.

Successive bail applications are maintainable only upon a substantial change in circumstances and cannot be used as a review of an earlier rejection, as held in State of Maharashtra v. Captain Buddhikota Subha Rao, State of M.P. v. Kajad, State of Tamil Nadu v. S.A. Raja and Kalyan Chandra Sarkar v. Rajesh Ranjan.

Although speedy trial is protected under Article 21, prolonged custody alone does not mandate bail where the offence is grave and commercial quantity is involved; the Court also relied on Chenna Boyanna Krishna Yadav v. State of Maharashtra, State of Bihar v. Amit Kumar and Tarun Kumar v. Assistant Director, Directorate of Enforcement.

The absence of physical recovery from the accused does not by itself satisfy Section 37, particularly where the material indicates knowledge, control or participation in the conspiracy, consistent with Union of India v. Rattan Mallik and the principles concerning conscious possession.

The Court found no substantial change from the circumstances considered in the earlier bail order.

The applicant’s prolonged incarceration and the fact that only three of 49 witnesses had been examined were not, by themselves, sufficient to overcome Section 37, particularly because the trial court had reported that the trial could be completed within 18 months.

Prima facie, the chargesheet materials indicated that the applicant had facilitated the transaction by procuring and forwarding the import-export licence details of witnesses, communicating with co-accused persons, supplying the contact number of a foreign accused, and remaining in contact with relevant persons on numerous occasions.

The Court held that these materials, including witness statements, call-detail records and WhatsApp communications, indicated active participation in the alleged conspiracy to import heroin through Mundra Port.

Given the recovery of 75 kg and 300 gms of heroin, the commercial quantity, the alleged conspiracy and the societal impact of the offence, the Court was not satisfied that there were reasonable grounds to believe that the applicant was not guilty.

The absence of recovery from his person did not materially alter this conclusion.

It held that the applicant had not demonstrated any substantial change in circumstances and had failed to satisfy the mandatory requirements of Section 37(1)(b) of the NDPS Act.

The trial court was directed to expedite the proceedings and conclude the trial within 18 months, without being influenced by the observations made in the bail order, which were expressly confined to consideration of the bail application.