The judgment established that prolonged custody, lack of responsibility for trial delays, and the inapplicability of specific legal provisions can be grounds for granting bail in controlled substance cases.

Open Court:

1. This bail application has been preferred under Section 439 Cr PC by the petitioner – being the second such application. The first application preferred by the petitioner was permitted to be dismissed as withdrawn with liberty to move the trial court. Upon moving the trial court, the application for bail was rejected by the trial court on 26.11.2014.

2. As per the case of the prosecution, the petitioner along with the co-accused Rakesh Arora were apprehended red handed while making delivery of the pseudoephedrine – which admittedly is a controlled substance, to the other co-accused, an African national called Anthony Okolo. On the disclosure of the petitioner and the co-accused Rakesh Arora, further recovery of 183 kgs. of pseudoephedrine in different forms was made. Indian currency 11,99,000/-, US dollars 210 and Dinars 2045 were also recovered from the possession of the co-accused Rakesh Arora. The samples of the substance recovered tested positive for pseudoephedrine, though some of the samples tested negative.

3. The submission of learned counsel for the petitioner is that he was merely an employee of Rakesh Arora, the co-accused, who was the kingpin. The petitioner was merely acting on the instructions of his employer. Learned counsel submits that Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) is not applicable in the present case, since pseudoephedrine is not a narcotic substance. He submits that the petitioner has been in custody since the date of his arrest, i.e. 02.05.2013. Learned counsel submits that this Court in the decision in Niranjan Jayantilal Shah v. Directorate of Revenue Intelligence decided on 19.11.2013 (Bail Appl No.1202/2013) had granted bail to the accused, where the recovery of the same controlled substance had been made of 100 kgs. This decision referred to had relied upon several other earlier decisions of the Court, where recovery of much larger quantities of controlled substance have been made.

4. In N.C. Chellathambi v. Narcotic Control Bureau (decided on 20.04.2005 in Bail Appln No.216/2005), one ton of ephedrine was recovered. In Ajay Aggarwal v. Narcotic Control Bureau (decided on 20.01.2005 in Bail Appl No.2036/2004), 1600 litres of acetic anhydride was recovered. In Rajiv Kumar @ Sukha v. State of Punjab (decided on 06.03.2009 in Crl Misc No.27654/2008), 25 kgs powder ephedrine hydrochloride was recovered. In Faiyaz Ahmed Rasool Shaikh v. Union of India (decided on 05.05.2011 in Crl Appl No.165/2011), 93 kgs of ephedrine was recovered, and in Chakrapani Dutt v. State, 100 litres of acctic anhydride was recovered. In all these cases, the accused had remained in custody for varying periods of time.

5. The application is opposed by the respondent. The respondent has filed its reply. The submission of learned counsel for the respondent is that the Supreme Court did not grant bail in the similar matter of Satish Vijay @ Bunty v. Intelligence Office, DRI, Hyderabad while dismissing the Criminal Appeal No.9650/2013 on 20.01.2014.

6. A perusal of the said order shows that the accused had been in custody for nearly a period of one year. The Supreme Court directed the Special Court to make all endeavour for early completion of the trial – preferably within a period of four months from the date of receipt of copy of the order. It further directed that if for any reason the Special Judge is not in a position to complete the trial – not on account of adoption of delaying tactics at the instance of the petitioner, the petitioner would be free to move a fresh application for bail and that the Court concerned would be free to pass appropriate orders on merit. The petitioner was directed to cooperate with the Special Court for early completion of trial.

7. Mr. Aggarwala has referred to the role played by the petitioner as detailed in the complaint. The complaint records that after receiving the tablets containing pseudoephedrine, Rakesh Arora with the help o