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Judgment
45 paragraphs · 3,477 wordsA. Guneshwar Sharma, J
ORDER [CAV]
[1] Heard Mr. Y. Nirmolchand, learned senior counsel assisted by Mr. U. Augusta, learned counsel for the petitioner and Mr. W. Darakeshwar, learned Sr. PCCG assisted by Ms. Niana N., learned counsel for NCB.
[2] This is the second bail application before this Court filed by the petitioner under Section 483 BNSS, 2023 in connection with NCB Crime No. 02/NCB/Imp/2023, dated 03-03-2023 u/s 8(c) & 9A to be read with Sections 21(c), 25A, 25 & 29 of the ND&PS Act, 1985.
[3] The earlier bail application being Bail Application No. 12 of 2024 filed by the petitioner was dismissed by this Court vide judgment and order dated 13-12-2024 considering the seriousness of the allegation made against the petitioner herein. However, the learned Special Court was directed to try and dispose of the trial at the earliest and by giving liberty to the petitioner to approach this Court again if the trial could not be concluded within a reasonable time.
[4] It is stated that out of 12 PWs, only 2 PWs have been examined in the last 6 months and in the circumstances, the petitioner has approached this Court again for granting bail during the pendency of the trial. The petitioner was arrested on 05-08-2023 in connection with the above referred case on the disclosure of a co-accused in Gujarat and after 7 days of transit remand, the Special Court, NDPS, Manipur remanded the petitioner to custody on 09-08-2023 and since his arrest, the petitioner is in custody. The present bail application is filed on the following change of circumstances: -
i) This Hon’ble High Court, has reserved the liberty of present applicant accused to approach directly to this Hon’ble High Court, by way of filing fresh bail application before this Hon’ble High Court, vide order dated 13-12-2024, passed in Bail Application No. 12 of 2024.
ii) In the trial, being Special Trial (ND&PS) No. 26 of 2023, there is no substantial progress. The charge has been framed vide order dated 18-09-2024, but till date not even a single witness has been fully examined. The trial is not likely to conclude in near future. The applicant is in jail since 05-08-2023.
iii) The main accused from whose possession the contraband was elatedly recovered has already been released on regular bail by this Hon’ble Court vide order dated 27-02-2025 passed in Bail Application No. 37 of 2024.
iv) The seized articles are neither narcotics nor psychotropic substance, but the same is, only controlled drugs as observed by this Hon’ble High Court in para 11 of the order dated 13-12-2024 passed in Bail Application No. 12 of 2024, hence, the classification of commercial quantity etc. would not be applicable.
v) The rigor of Section 37 would not be applicable, since the present applicant is facing charges for alleged offence punishable under Section 25A/29 of the ND&PS Act, 1985 as per charges framed by learned Special Court (ND&PS), Imphal, dated 18-09-2024.
vi) The confessional statements of the applicant or other accused, are no admissible in evidence, as per the judgment of Hon’ble Apex Court of India in Tofan Singh V. State of Tamil Nadu.
vii) There is no incrementing material has even been found which may even remotely connect the present applicant with the alleged offence.
[5] It is also stated that one of the main co-accused Mrs. Nemkhohat Guite was released on bail by this Court vide order dated 27-02-2025 passed in Bail Application No. 37 of 2024 on the ground that she was languishing in jail for almost 2 years. It is stated that out of 12 PWs cited by the prosecution, till now, only 2 PWs have been examined and it may take further 2 to 3 years in examining the remaining witnesses. It is stated that the allegation against the petitioner is that the main accused Mr. Bhadresh Kumar Patel purchased the controlled substance, i.e., pseudoephedrine tablets, from the petitioner and Mr. Patel and his colleagues misbranded the drugs and transported the same to other places. It is further stated that he is not related with the crime at all and the controlled drugs purchased from him have been misbranded and misused by Mr. Patel and his colleagues. It is pointed out that vide order dated 29-07-2025 passed by the Hon’ble Supreme Court in SLP (Crl.) No. 2622 of 2025, the main accused Mr. Bhadresh Kumar Patel was released on bail considering the slow progress in the trial. Mr. Y. Nirmolchand, learned senior counsel for the petitioner, submits that without considering the merits of the case, the petitioner herein is also entitled to be released on bail considering the slow progress in the trial as observed by the Hon’ble Supreme Court vide order dated 29-07-2025 in SLP (Crl.) No. 2622 of 2025 where the main accused Mr. Bhadresh Kumar Patel was released on bail and also vide order dated 27-02-2025 in Bail Application No. 37 of 2024, whereby another main accused was also released by this Court only on the same question of slow progress and in custody for almost 2 years. In the present case, the petitioner herein is also in custody for more than 2 years and he is also entitled to bail as granted by Hon’ble Supreme Court in the case of main accused and another main accused as granted by this Court only on the ground of slow progress in the trial and long incarceration in custody. It is also submitted that the statement under Section 67 of the NDPS Act is inadmissible in evidence in view of Sections 25 and 26 of the Indian Evidence Act (now, BNA) and more particularly, in view of the judgment of Hon’ble Supreme Court dated 26-10-2020 in Criminal Appeal No. 152 of 2013 delivered in case of Tofan Singh vs. State of Tamil Nadu. Mr. Y. Nirmolchand, learned senior counsel for the petitioner refers to the following case law: -
(a) SLP (Crl.) No. 2622 of 2025 passed by Hon’ble Supreme Court:
“2. The petitioner is involved in an NDPS case for supplying 1500 packets of Pseudoephendrine tablets. The petitioner was arrested on 10-05-2023 and is in jail ever since then. Though, the trial has commenced but, only one witness out of 12 witnesses has been examined, meaning thereby that the trial is likely to take sufficient time for completion.
The possession of psychotropic substance would be an offence only if it is in contravention of the statutory provisions or the prescribed rules.”
(b) (1984) 1 SCC 284, Bhagirathsinh S/O Mahipat Singh Judeja vs. State of Gujarat:
“Para No. 5. …………………Nearly 3 months have rolled by from the date of the offence. We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.……………
Para No. 7. ……………………The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court.”
(c) (2012) 1 SCC 40, Sanjay Chandra vs. Central Bureau of Investigation:
“40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
This Court in Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, AIR 1978 SC 179 observed that two paramount considerations, while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.
There are seventeen accused persons. Statements of witnesses run to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that the accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.”
(d) (2008) 16 SCC 417, Noor Aga V. State of Punjab & Anr:
“67. The appellant contended that the purported confessions recorded on 2.8.1997 and 4.8.1997 were provided by an officer of the Customs Department roughly and later the same were written by him under threat, duress and at gunpoint and had, thus, not been voluntarily made. The High Court should have considered the question having regard to the stand taken by the appellant. Only because certain personal facts known to him were written, the same by itself would not lead to the conclusion that they were free and voluntary.
Clause (3) of Article 20 of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. Any confession made under Section 108 of the Customs Act must give way to Article 20(3) wherefor there is a conflict between the two. A retracted confessional statement may be relied upon but a rider must be attached thereto, namely, if it is made voluntary. The burden of proving that such a confession was made voluntarily would, thus, be on the prosecution. It may not be necessary for us to enter into the question as to whether the decisions of this Court that a Customs Officer is not a police officer should be revisited in view of the decision of this Court in Balkrishna Chhaganlal Soni v. State of West Bengal, (1974) 3 SCC 567, wherein it was stated :
"12. On the proved facts the gold bar is caught in the criminal coils of Section 135, read with Sections 111 and 123, Customs Act, as the High Court has found and little has been made out before us to hold to the contrary."
[6] It is submitted that considering parity with other co-accused released on bail by the Hon’ble Supreme Court and this Court only on the ground of long incarceration in custody and slow progress of the trial, the petitioner herein may also be released on bail on this ground only and he is ready to/will abide by the conditions imposed by this Court.
[7] On the other hand, Mr. W. Darakeshwar, learned Sr. PCCG for the NCB, submits that the petitioner herein, Mr. Harshal Desai, is a history-sheeter in narcotics offences and there cannot be any parity with other accused released on bail due to slow progress in trial. He refers to para 55 of the counter affidavit where the role of the present accused is enumerated:-
“55. Role of Harshal Desai, Director of Ardor Drugs Pvt. Ltd.
i) That, according to the statement of the accused Bhadresh Patel (Owner of Recover Healthcare Pvt Ltd.), Ardor Drugs used to generate bogus bill/tax invoices in the name of Recover Healthcare Pvt. Ltd. and never actually supplied these drugs to M/s Recover Healthcare, Ahmedabad except for the 15 lakhs Phifed tablets containing Pseudoephedrine HCI which were supplied to him under bogus tax invoice generated for ADMOS SR tablets. Bhadresh Patel has also stated that he used to get commission of Rs 1 for a strip of ten tablets of Pseudoephedrine for accepting bogus billings/tax invoices.
ii) That, during interrogation, Bhadresh Patel also accepted that GST entries at Ardor Drugs and Recover Healthcare is tallied regarding sale and purchase of Pseudoephedrine content drugs and Ardor Drugs Pvt. Ltd. used to file GST every month after tallying the entries. It has been confirmed by the account of Recover Healthcare also.
iii) That, Bhadresh Patel has also admitted in his statement that Harshal Desai used to generate Tax Invoices in the name of Recover Healthcare but the products mentioned in the Tax Invoices used to be supplied to some other parties. Sometimes he used to generate false bills with the name of some other products for supply of Pseudoephedrine based tablets to Bhadresh Patel to sell the said Pseudoephedrine tablets. For the said purpose Harshal Desai paid Rs. 10 lakh as commission to Bhadresh Patel, which is reflected in the bank account statement of The Kalupur Commercial Co-operative Bank of Recover Healthcare.
iv) That, Harshal Desai has admitted in his statement that he used to generate Tax Invoices in the name of Recover Healthcare but the products mentioned in the Tax Invoices used to be supplied to some other parties. Sometimes he used to generate false bills with the name of some other products for supply of Pseudoephedrine based tablets to Bhadresh Patel to sell the said Pseudoephedrine tablets. For the said purpose he paid Rs. 10 lakh as commission to Bhadresh Patel also which is corroborated with the bank A/c statement.
v) That, Harshal Desai has himself admitted in his statement that he had directed Mehul Desai to deliver the 26 cartons of Phifed tablets containing Pseudoephedrine tablets of which bill generated in the name of Admos SR to the party sent by Bhadresh Patel on 19.01.2023.
vi) That, there is an NDPS case vide no. 48/2020 registered in connection with seizure of Tramadol content drugs at DRI Surat before District and Session Spl. Court Surat. Final Complaint has been filed by DRI Surat and presently the case is under trial.”
[8] Mr. W. Darakeshwar, learned Sr. PCCG for the NCB, also refers to the judgment reported as (2014) 16 SCC 508: Neeru Yadav v. State of Uttar Pradesh, paras 11, 13 & 17, wherein it was held that a history-sheeter with criminal antecedents is not entitled to bail. He further relies on the judgment in (2021) 5 SCC 430: Union of India Vs. Prateek Shukla stating that even if the rigors of Section 37 of NDPS Act are not applicable to controlled substance, however, in offence with large quantity of the controlled substance, the Court has to consider this aspect in considering bail under Section 439 CrPC/483 BNSS. Mr. W. Darakeshwar, learned Sr. PCCG, also refers to the judgment reported as (1998) 6 SCC 507: PR Despande Vs Maruti Balaram Haibatti which holds that a person cannot approbate and reprobate in the same transaction where in the trial court it is stated that Section 37 will be applicable and in the present bail application Section 37 of the NDPS will not be applicable. In the judgment titled Asante Pinket Owusu Vs. Narcotics Control Bureau passed by the Delhi High Court, it was held that Section 436A of the CrPC will not be applicable as the petitioner has not undergone half of the maximum sentence prescribed under the Act. Similarly, in the bail application titled Karuthan Ponnaiya & Anr Vs. Senior Intelligence Officer, State of Kerala, the High Court of Kerala observed that even if Section 37 of the NDPS Act is not applicable to controlled substance, the Court has to consider the quantity of the contraband seized from the accused. It is submitted that the petitioner cannot get the benefit of bail granted to the co-accused by the Hon’ble Supreme Court and this Court on the ground of delay in trial, as such benefit cannot be extended to the petitioner who is a history-sheeter. It is, therefore, prayed that the bail application be rejected.
[9] This Court has considered the materials on record, the submissions made at the Bar and the case law cited by the learned counsel for the parties. In the present case, the quantity of controlled substance is huge, i.e. 533 packets of pseudoephedrine tablets which have been misbranded and transported as normal drugs by concealing the packets. Myanmar via Manipur as normal drugs. Out of 12 PWs cited, only 2 PWs have been examined so far and 10 more are to be examined. While dismissing the earlier bail application, i.e., Bail Application No. 12 of 2024, filed by the petitioner, vide order dated 13-12-2024, the petitioner was granted liberty to approach this Court again if the trial could not be completed within a reasonable time. After this, only 2 witnesses have been examined in the last 6 months and it may take considerable time to examine the remaining 10 witnesses and also DWs, if any. While granting bail to the main accused, Mr. Bhadresh Kumar Patel, by the Hon’ble Supreme Court, the only consideration was long incarceration in custody and slow progress and no opinion was expressed on the merits of the case. In the present case also, the petitioner has been in continuous custody for the last 2 years and the slow progress of the trial is also applicable to him. Having two cases under NDPS Act pending in trial, it would not be proper to treat the petitioner as a history sheeter in narcotic cases before the conclusion of the prosecution. In the circumstances, without going into the merits of the case and allegations made against the petitioner herein, this Court is inclined to release the petitioner on bail on slow progress and long incarceration in custody. Accordingly, the bail application is allowed. The petitioner is to be released on bail with the following conditions:—
i) The accused/petitioner be released on bail on his furnishing PR bond of Rs. 3,00,000/- (Rupees three lakh) only with 1 (one) surety (local Government Employee of the State of Manipur) of the like amount to the satisfaction of the learned Special Court, NDPS, Manipur.
ii) The accused/petitioner should co-operate with the prosecution and he should make himself available for appearance before the Special Judge, NDPS, Manipur in the trial as and when required.
iii) The accused/petitioner should not leave the State of Manipur without prior permission of the learned Special Court, NDPS, Manipur.
It is further made clear that if the accused/petitioner violates any of the conditions given hereinabove, the respondent is at liberty to approach this Court for modification or cancellation of this order.
[10] Send a copy of this order to the learned Special Judge, NDPS, Manipur at Lamphelpat, Imphal for information.