The court reaffirmed that bail under the NDPS Act requires strict adherence to Section 37(1)(b)(ii), emphasizing that health conditions alone do not justify bail in serious drug offenses.

ORDER :

Subodh Abhyankar, J.

1. They are heard. Perused the case diary / challan papers.

It is seen that in the cases involving the NDPS Act, almost all the times, varied decisions of the Supreme Court are cited by the parties, either allowing the bail or dismissing the same, and depending upon which judgement weighs in, the fate of the case is decided, either in favour or against the accused, resulting in inconsistency in the orders passed by this court. Hence, with a view to follow a consistent view, parties were directed to address on the issue of grant of bail in the cases involving the NDPS Act, by referring to the relevant case laws.

2. This is the fifth bail application under Section 439 of Criminal Procedure Code, 1973 (483 of Bhartiya Nagrik Suraksha Sanhita, 2023), as he is implicated in connection with Crime No.2/2022 registered at Police Station NCB, Mandsaur, District Mandsaur (MP) for offence punishable under Section 8/15, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The applicant is lodged in jail since 15/03/2022.

3. His first bail bail application M.Cr.C. No.30104/2022 was dismissed as withdrawn on 02/12/2022, and last three applications viz., M.Cr.C. No.59391/2022, 47878/2023 and 29537/2024 have already been dismissed by this Court on merits vide orders dated 13/03/2023, 01/11/2023 and 31/07/2024 respectively.

4. Allegations against the applicant are that he was also involved in the aforesaid case wherein 470 kg of poppy straw was recovered from the possession of co-accused Ajay and Raju. It is alleged against the applicant, on the basis of memo prepared under Section 27 of the Evidence Act given by co-accused, that the present applicant was the person to whom the aforesaid contraband was to be delivered.

5. Counsel for the applicant has submitted that the present application has been filed only on the ground of period of incarceration as the applicant is lodged in jail since 15/03/2022, and only 3 witnesses have been examined in the trial Court out of 24 witnesses. It is also submitted that although two other cases of NDPS Act have also been registered against the applicant, but in both these cases, he has already been granted bail. In one case, he was arraigned on the basis of memo of 27 of the Evidence Act, whereas in the other case, he was found in possession of 10 kg of poppy straw. Thus, it is submitted that the bail application be allowed as the conclusion of the trial is likely to take sufficient long time. In support of his submission, counsel for the applicant has relied upon the decision rendered by the Supreme Court in the case of State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another passed in SLP (Crl.) No.242 of 2022 dated 10/01/2022 wherein, the Supreme Court has allowed the bail application of the accused person who was arraigned only on the basis of memo under Section 67 of the NDPS Act despite the fact that there was CDR available and criminal antecedents of the accused. Counsel has also relied upon the recent decision rendered by the Supreme Court in the case of Ankur Chaudhary vs. State of M.P. in SLP (Crl.) No.4648/2024 dated 28/05/2024 wherein, the Supreme Court has also taken into account the statutory embargo created under Section 37(1) (b) of the NDPS Act, holding that the fundamental rights guaranteed under Article 21 of the Constitution of India would override the such statutory embargo, and the applicant therein Ankur Chaudhary who had spent around two years of incarceration was released on bail. Thus, it is submitted that the application may be allowed.

6. Shri Manoj Soni, learned counsel for the respondent / NCB, on the other hand, has vehemently opposed the prayer and it is submitted that no case for grant of bail is made out looking to the fact that the applicants earlier bail applications have already been dismissed on merits looking to his involvement in the case, and the last application was also dismissed on merits only on 31/07/2024. Counsel