Bombay High Court Grants Bail in NDPS Case, Citing Procedural Irregularities

March 4, 2025 – The Bombay High Court delivered a significant ruling today, granting bail to four accused in a Narcotic Drugs and Psychotropic Substances (NDPS) Act case (CR.No.69 of 2023) due to serious procedural lapses by the prosecution. Justice Milind N.Jadhav 's judgment highlighted the non-compliance with Section 52A of the NDPS Act and the related rules, ultimately influencing the court's decision to release the accused.

Case Overview

The case involved four accused (Accused Nos. 2, 4, 5, and 6) charged with offences under Sections 8(c), 21(c), 22(c), and 29 of the NDPS Act, along with sections of the Indian Penal Code (IPC) related to forgery and cheating. The prosecution's case rested on alleged recoveries of contraband substances, disclosure statements, and incriminating WhatsApp chats. However, the defense vehemently challenged the legality of the searches and seizures, and the validity of the evidence presented.

Prosecution's Arguments

The prosecution contended that the accused were involved in the illicit trafficking of controlled substances, citing the recovery of commercial quantities of contraband. They highlighted the incriminating WhatsApp chats and statements from co-accused as evidence of the accused's guilt. The prosecution argued that the technical non-compliance with procedural rules shouldn't override the seriousness of the crime and the need to deny bail under the stringent provisions of Section 37 of the NDPS Act.

Defense's Arguments

The defense argued that the investigation was flawed, highlighting several procedural irregularities. They challenged the legality of the house searches conducted without warrants, the lack of proper grounds for arrest, and the absence of the prescribed Form 5 certificate under the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022. They emphasized that the evidence against Accused Nos. 4 and 5, in particular, was weak, consisting primarily of statements from co-accused and invoices that did not directly link them to the recovered contraband. The defense relied on the Supreme Court’s decision in Bharat Chaudhary v. Union of India , which held that WhatsApp chat printouts alone are insufficient to establish a link to NDPS offences at the bail stage.

Court's Decision and Reasoning

The court meticulously examined the procedural deficiencies, acknowledging the Supreme Court's pronouncements in cases like Ramu Appa Mahapatar v. The State of Maharashtra regarding the threshold of guilt needed for conviction based on circumstantial evidence. Justice Jadhav found that the prosecution had not sufficiently established the mens rea (guilty intent) of Accused Nos. 4 and 5. Crucially, the court noted the significant non-compliance with Section 52A of the NDPS Act. The magistrate’s certificate, in all four cases, failed to comply with the mandatory format outlined in Form 5 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022. This procedural lapse, combined with other irregularities, significantly weakened the prosecution’s case.

The court also cited the Supreme Court's decision in Vihaan Kumar v. State of Haryana , which emphasized the mandatory nature of informing an arrested person of the grounds of arrest, a right protected under Article 22(1) of the Constitution.

The judge highlighted that while the rigors of Section 37 of the NDPS Act generally favour denying bail, the procedural non-compliance in this case made granting bail necessary.

The court granted bail to all four accused subject to several conditions, including regular reporting to the investigating officer, cooperation with the trial, and remaining within the State of Maharashtra.

Implications and Directives

Justice Jadhav 's judgment goes beyond the immediate case, delivering critical directives to law enforcement agencies across Maharashtra. The court emphasized the urgent need for strict adherence to the procedural requirements under the NDPS Act and its rules. The judge ordered the court registry to send a copy of the judgment to all Commissioners of Police and Superintendents of Police, instructing them to disseminate the NDPS Act guidelines and rules to all police stations and prosecuting agencies under their jurisdiction. This ruling underscores the importance of procedural fairness even in cases involving serious offenses like drug trafficking. The judgement's emphasis on meticulous procedural compliance will likely impact future NDPS cases in the state and encourage a greater focus on due process in investigations.