Calcutta High Court: A petition was filed by the petitioner seeking bail in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), following his arrest on 26-08-2023 after a raid conducted by the Narcotics Control Bureau (NCB) led to the seizure of 148.5 kg of cannabis, which is well above the commercial quantity threshold. A division bench of Arijit Banerjee and Biswaroop Chowdhury, JJ., while acknowledging the stringent bail conditions under Section 37 of the NDPS Act, denied the petitioner’s request for bail, citing prima facie incriminating material against him and the lack of sufficient grounds to believe that he was not guilty or unlikely to reoffend if released.
On 22-08-2023, based on source information, the Narcotics Control Bureau (NCB) conducted a raid at the house of the petitioner and seized a substantial quantity of contraband. Subsequently, the petitioner was arrested on 26-08-2023. Aggrieved by his continued detention, the petitioner filed a bail application. The petitioner challenged the validity of the search, seizure, and arrest, alleging non-compliance with statutory safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the Code of Criminal Procedure, 1973 (CrPC). He contended that the investigation and procedural conduct of the NCB violated his constitutional and legal rights, warranting his release on bail.
The petitioner contended that there was a violation of Section 50(1) of the NDPS Act, which mandated that if a person is to be searched under Sections 41, 42, or 43, they must be given the option to be taken before a Gazetted Officer or Magistrate. The argument was that the head of the raiding team himself, acted as the Gazetted Officer while conducting the search and seizure, making him not an independent authority. This, the petitioner claimed, vitiated the search and seizure process, as it did not comply with the statutory requirement of ensuring an independent officer’s presence.
The Court remarked that “the twin conditions that must be satisfied before bail is granted to the petitioner are paramount and must prevail over other considerations. The petitioner may well be entitled to a verdict of acquittal at the trial by arguing violation of Section 50(1) of the NDPS Act. However, at this stage, given the 28 prima facie incriminating material against the petitioner, I am unable to record an opinion that there are reasons to believe that the petitioner has not committed the offence that he has been charged with or that if released on bail, he is not likely to commit an offence again. In an NDPS case, a prayer for bail has to be decided within the parameters of Section 37 of the Act, notwithstanding anything contained in the Code of Criminal Procedure.”
The Court further remarked that “even when an arrest is made without complying with the requirements mentioned in Section 41-B CrPC, still, bail cannot be granted in an NDPS case without satisfying the two 32 conditions mentioned in that section. An arrest made without complying the provisions of Section 41-B CrPC would not per se indicate that there are reasonable grounds to believe that the accused is not guilty of the offence he is charged with and that he is not likely to commit any offence while on bail.”
The petitioner also challenged the seizure process, contending that the seizure list lacked his signature and there was no evidence linking him to the property where the contraband was found. However, the Court dismissed these arguments, stating that such factual disputes should be examined during trial. The Court also rejected reliance on precedents where Section 37 was not considered, affirming that mere procedural lapses do not automatically weaken the stringent bail restrictions under the NDPS Act. The Court emphasized that bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act must strictly adhere to the twin conditions of Section 37, which override other considerations. While the petitioner argued a possible acquittal at trial due to an alleged violation of Section 50(1) of the NDPS Act, the Court found prima facie incriminating material and refused bail.
Thus, the Court concluded that the petitioner was found in possession of 148.5 kg of cannabis, well above the commercial quantity threshold. Given the substantial incriminating evidence, the Court denied bail, noting that the petitioner has been in custody for 1 year and 3 months, with three witnesses already examined. The Court found no undue delay in the trial’s progress and ruled that the petitioner’s rights under Article 21 of the Constitution were not violated. While acknowledging its power to grant bail despite statutory restrictions under Section 37 of the NDPS Act, the Court held that the case did not warrant such relief. However, the Court directed the Special Court to expedite the trial, ensuring an early conclusion without unnecessary adjournments.
Writing separately, Justice Biswaroop Chowdhary concurred with the reasoning and conclusion of the above judgment but added further grounds regarding the grant of bail under the NDPS Act. It reiterates the stringent conditions of Section 37 of the Act, emphasizing that non-compliance with Section 50 may be relevant only at trial and not at the bail stage. The judgment cites various Supreme Court decisions, including Arvind Kejriwal v. CBI, 2024 SCC Online SC 2550 and Mohd Tahir Hussain v. State of NCT of Delhi, 2025 SCC Online SC 135, which highlighted the importance of personal liberty and the principle that mere gravity of allegations should not alone justify denial of bail, particularly when trial is unduly prolonged. The Court stressed the necessity for expeditious trials and condemning judicial delays that result in extended pre-trial incarceration. The Court acknowledged the repeated directions for speedy trials in NDPS cases, given that bail is generally denied under the Act. However, despite the delay, it concluded that the present case does not warrant bail and directed the Trial Court to expedite proceedings.
The Court further elaborated on the concept of interim bail, distinguishing it from regular bail. It stated that while NDPS cases require strict bail conditions, Courts may grant interim bail if the trial is excessively delayed. Such bail can be periodically reconsidered to prevent undue mental distress to the accused, allowing them to maintain mental strength for trial, potential reformation in case of conviction, or reintegration into society if acquitted. The Court also underscored the adverse psychological effects of prolonged detention, especially for young, accused persons, and suggests that unless there is a compelling threat to public safety or the fairness of the trial, temporary release should be considered. The Court concluded that interim bail should be granted with conditions that mitigate the risk of reoffending while ensuring that the accused remains capable of facing trial effectively.
[Hero Sarkar v. UOI, 2025 SCC OnLine Cal 2659, decided on 28-03-2025]
Advocates who appeared in this case :
For the petitioner: Mr. (Dr.) Arjun Chowdhury, Adv., Ms. Pratusha Dutta Chowdhury, Adv., Ms. Riya Agarwal, Adv., Mr. Koushik Kr. Kanu, Adv., Ms. Tulip Saha, Adv.
For the NCB/UOI: Mr. Sudipto Kr. Mazumder, Ld. DSGI., Mr. Sudip Kumar Paul
