Gujarat High Court
Rafik Adam Sumra vs State Of Gujarat on 18 March, 2026
NEUTRAL CITATION
R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026
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Reserved On : 18/02/2026
Pronounced On : 18/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL) NO. 3010 of 2025
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RAFIK ADAM SUMRA Versus STATE OF GUJARAT & ANR.
================================================== Appearance:
MR.I.H.SYED, SENIOR COUNSEL WITH MS SHREYA OJHA(14681) for the Appellant(s) No. 1 MR. CHINTAN DAVE, APP for the Opponent(s)/Respondent(s) No. 1 MR ANKIT SHAH(6371) for the Opponent(s)/Respondent(s) No. 2 ================================================== CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA and HONOURABLE MR.JUSTICE D. M. VYAS CAV ORDER (PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA) [1] This is an appeal preferred against the order dated 06.11.2025 passed in NIA Criminal Misc. Application No.61 of 2025 by the learned Sessions Court under Section 21 of the National Investigation Agency Act, 2008 (hereinafter referred to as "the NIA Act"), by which the Sessions Court refused to grant regular bail to the appellant herein, who was arraigned as accused No.2.
[2] On 12.08.2018, the Anti-Terrorism Squad (ATS) Police Station, Ahmedabad, Gujarat registered Crime No.111-01/2018 for offences punishable under Sections 8(c), 21(c), 24, 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, Page 1 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined 1985 (hereinafter referred to as "the NDPS Act") relating to the seizure of 4.949 kgs. of heroin, which was in the possession of Aziz Abdul Bhagad, accused No.1. It was alleged that heroin was smuggled by Pakistani nationals in a Pakistani fishing vessel and was delivered in Indian maritime waters to an Indian vessel owned by accused No.1.
[3] The ATS, Gujarat thereafter arrested the present appellant on 13.08.2018 along with accused No.1. The ATS, Gujarat also arrested three other persons in relation to this seizure.
[4] On completion of the investigation, the ATS, Gujarat filed a charge sheet on 07.09.2019.
[5] On 29.01.2020, the S.T.F., S.A.S. Nagar, Punjab registered FIR No.20/2020 under Sections 21, 25, 27A and 29 of the NDPS Act and under Section 30 of the Arms Act in relation to the seizure of 8 kgs. of heroin from the possession of Sukhbir Singh @ Happy. In this case, on completion of the investigation, a charge sheet was filed on 11.06.2020 and 9 accused persons were arrested.
[6] On 31.01.2020, the S.T.F., S.A.S. Nagar, Punjab registered another FIR being No.23/2020 for offences under Sections 21, 25, 27A and 29 of the NDPS Act, relating to the seizure of 188.9 kgs. of heroin. This seizure was part of a consignment of 200 kgs. of heroin, which was smuggled from Pakistan to Gujarat Page 2 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined and transported to Punjab, which was the subject matter of the seizure by S.T.F., Punjab. On conclusion of investigation, a charge sheet was also filed in this crime on 07.07.2020.
[7] On 29.06.2020, the Union of India, taking into consideration that all the aforementioned three crimes were part of the same offence, directed the NIA to investigate all three crimes as provided under Section 8 of the NIA Act. Accordingly, the NIA re-registered the case as RC 26/2020 NIA/DLI on 02.07.2020 and took over the investigation.
[8] On 29.06.2020, the Union of India transferred Crime No.111-1/2018 registered by ATS, Police Station, Ahmedabad, Gujarat to the NIA, and the NIA re-registered the case on 02.07.2020.
[9] On 07.08.2020, the Union of India transferred FIR No.20/2020 which was registered by the S.T.F., S.A.S. Nagar, Punjab to NIA Delhi.
[10] On 28.06.2021, the Union of India had transferred FIR No.23/-2020 which was registered by the STF, Mohali to NIA. After taking over the investigation, the NIA has filed as many as 8 supplementary charge sheets.
[11] The NIA thereafter proceeded to file Transfer Petition (Criminal) Nos.487-488/2023 before the Hon'ble Supreme Court seeking transfer of the Sessions Case registered pursuant to FIR Page 3 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined No.20/2020 dated 29.01.2020 and the Sessions Case arising out of FIR No.23/2020 dated 30.01.2020 to the NIA Court, Ahmedabad. The Hon'ble Supreme Court, by order dated 30.09.2024, allowed the transfer petition and directed that the Sections Cases pending before the Courts in Punjab be transferred to the NIA Court at Ahmedabad.
[12] It is pertinent to state that the NIA Court at Ahmedabad had framed charges on 18.07.2023 in the case pending before it relating to the FIR registered by ATS, Ahmedabad, Gujarat. Though charges were framed on 18.07.2023, the trial did not commence immediately thereafter, obviously because the NIA was seeking clubbing of all the three cases and transfer of all the cases to the NIA Court, Ahmedabad.
[13] The appellant, who was arraigned as accused No.2, has remained in custody since 13.08.2008. In other words, the appellant has been in custody for the past 7 ½ years.
[14] In these cases, the NIA has stated that it wishes to examine 180 witnesses and produce 173 documents to establish the guilt of the accused.
[15] It is admitted, that, as of today, 46 witnesses have been examined and there are still 134 witnesses are yet to be examined.
Page 4 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined [16] Shri I. H. Syed, learned Senior counsel for the appellant contended that there has been an inordinate delay in conduct of the trial and there is definitely no possibility of the trial concluding in the near future. He admitted that only 46 witnesses have been examined by the NIA since the framing of charges in the year 2023 against the appellant and obviously the examination of remaining 134 witnesses would consume an enormous amount of time and the appellant cannot be subjected to punitive detention for no fault of his. Learned senior counsel submitted that prolonged incarceration due to delay in trial would amount to a direct contravention of the right to a speedy trial guaranteed under Article 21 of the Constitution of India, and such a detenue would be entitled to be released on bail, even if the special statute under which he has been charged places a restrictive embargo on the grant of bail.
[17] Learned Senior counsel further submitted that considerations for grant of bail prior to the commencement of trial and the considerations for grant of bail due to a delay in trial are markedly different and the usual ingredients that is gravity of offence etc., cannot be strictly applied in case of a prolonged delay in trial. He submitted that the only consideration in a case where there is a delay in the conduct of the trial would be the long incarceration and the possibility of a further delay in the trial. He therefore submitted that the appellant, who has been in custody for nearly 7 ½ years, would be entitled to be released on bail forthwith. He further Page 5 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined submitted that the delay in the conduct of the trial cannot be attributed to the appellant in any way since the appellant had not caused any impediments for the trial.
[18] Mr. Syed, learned Senior counsel for the appellant placed reliance on the following citations in support of his case:-
(i) Union of India versus K.A.Najeeb reported in (2021) 3 SCC 713.
(ii) Javed Gulam Nabi Shaikh versus State of Maharashtra and another reported in (2024) 9 SCC 813.
(iii) Sheikh Javed Iqbal versus State of Uttar Pradesh reported in (2024) 8 SCC 293.
(iv) Rajvirsinh @ Rajanlal Meghsinh Jat versus The State of Gujarat passed in SLP (CRL) NO. 20889 OF 2025.
(v) Mohd Muslim @ Hussain v. State (NCT of Delhi) passed in SLP (CRL) NO. 915 OF 2023.
(vi) Ankur Choudhary v. State of Madhya Pradesh passed in SLP(Crl.).No.4648/2024.
(vii) PARTHA CHATTERJEE VERSUS CENTRAL Page 6 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined
BUREAU OF INVESTIGATION passed in SLP (CRL) NO. 2471-2472 OF 2025.
[19] Shri Ankit Shah, learned counsel appearing for the NIA submitted that having regard to the fact that the case involved seizure of enormous quantities of heroin and there was also material to indicate that there was a larger international conspiracy and the conspiracy was to commit terrorist acts, the appellant would not be entitled to grant of bail. He sought to contend that in the case that was registered in the year 2018 against the appellant, there is material to indicate that the heroin seized were kept in the godown belonging to the appellant and the appellant had transported a larger consignment to Punjab, which resulted in the filing of the other two FIRs and the entire conspiracy had come to light only when the crime had been registered at Punjab. He submitted that it is settled law that there was required to be a clear examination of the material in NDPS cases and UAPA cases and only if the Court arrives at a conclusion that the accused is prima facie not guilty can the question of grant of bail arise. He submitted that in the instant case, having regard to the enormity of evidence on record, it is clear that the accused are in fact guilty and would therefore not be entitled to bail.
[20] Shri Shah, learned counsel appearing from NIA placed reliance on the following citations in support of his case:-
Page 7 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined
(i) National Investigation Agency versus Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1.
(ii) Gurwinder Singh versus State of Punjab and another reported in (2024) 5 SCC 403.
(iii) Arsalan Feroze Ahenger versus National Investigation Agency decided on 07.07.2025 passed by the High Court of Delhi at New Delhi in CRL.A.1087/2024.
(iv) Mansoor Ali versus State of Himachal Pradesh reported in 2025 SCC OnLine HP 4249.
(v) Mohd Abdul Rehman versus State NCT of Delhi decided on 23.12.2024 passed by the High Court of Delhi at New Delhi in CRL.A.280/2023.
(vi) Gulfisha Fatima versus State (Govt. of NCT of Delhi) reported in 4 2026 INSC 2.
(vii) Ankush Vipan Kapoor versus National Investigation Agency reported in 2024 INSC 986.
(viii) Central Bureau of Investigation versus Dayamoy Mahato etc. reported in 2025 SCC OnLine SC 2775.
(ix) State of Kerala and others versus Rajesh and others reported in (2020) 12 SCC 122.Page 8 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026
NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined [21] It is also pertinent to state here that one of the co-accused, namely Mantej Singh @ Micky Satinder Singh had also made an application for grant of bail, but the same had been rejected, and an appeal filed by him was also rejected by this Court on 19.02.2024. The said Mantej Singh @ Micky Satinder Singh had preferred an SLP before the Hon'ble Supreme Court, and the Hon'ble Supreme Court disposed of the same by directing the Special Court to dispose of the matter as early as possible and in any event within a period of one year from 18.09.2024. The Hon'ble Supreme Court also stated that if, within the said period of one year, the trial remained inconclusive, liberty was reserved to Mantej Singh @ Micky Satinder Singh to move for bail before the concerned Special Court.
[22] The appellant herein filed an application on 06.11.2025 seeking bail. However, the Sessions Court, on consideration of the material before it, came to the conclusion that there was no justification for granting bail and proceeded to reject the application. As a consequence, the appellant has filed the present appeal.
[23] In the light of the arguments advanced by the learned counsels, the principal question which arises for consideration in this appeal is whether the appellant would be entitled to grant of bail on the ground that he has been in custody for nearly 8 years and there has been an inordinate delay in the Page 9 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined conduct of the trial, and furthermore, there are no prospects of the trial being concluded in the near future.
[24] At the outset, it is to be stated here that the considerations for grant of bail prior to the commencement of the trial would stand on a completely different footing as compared to grant of bail after the trial has commenced. Before the commencement of the trial, the paramount objective would be prevent any attempt to scuttle or weaken the investigation by making an attempt to tinker with the evidence by corrupting the witnesses either by intimidation or any such means. Before the commencement of the trial, the possibility of the accused absconding to prevent a comprehensive investigation would also be present.
[25] However, in cases where the accused has been arrested and has been in the custody of the law, i.e., either with the Police or with the Court (judicial custody) during the entire course of the investigation till its conclusion, and the charge has been framed and the trial has commenced, the the considerations for grant of bail would take a completely different complexion.
[26] The right to a speedy trial, by a series of judgments rendered by the Apex Court, is considered as a fundamental right guaranteed to a person under Article 21 of the Constitution of India. It is also stated in clear and explicit terms Page 10 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined and reiterated over an over again by the Apex Court that this constitutional right would override any statutory limitations imposed for the grant of bail, whenever there is a delay in the conduct of the trial so long as the person in custody is not responsible for the delay in the trial.
[27] The legal principle that has been formulated is that a person accused of an offense cannot be made to undergo a long period of incarceration even before he is found guilty by the Court after trial. In other words, in the guise of detaining him to facilitate a trial, an accused cannot be subjected to punitive detention.
[28] In recognition of this constitutional right, the Parliament amended the Cr.P.C. and inserted Section 436-A1. This provision stipulates the maximum period for which an under trial can be detained and it explicitly states that in cases for which an offence is not punishable by death, if the under trial prisoner has been detained during the course of investigation and during trial for a period extending to up to one half of the maximum period of imprisonment, he would have to be released on bail. Thus, the constitutional right of a speedy trail has been recognized and embodied in Section 436-A of the Cr.P.C.
1 Maximum period for which an under trial can be detained and it explicitly states that in cases for which an offence is not punishable by death, if the under trial prisoner has been detained during the course of investigation and during trial for a period extending to up to one half of the maximum period of imprisonment, he would have to be released on bail. Thus, the constitutional right of a speedy trail has been recognized and embodied in Section 436-A of the Cr.P.C.
Page 11 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined [29] It must be noticed here that in respect of offences under the special statutes such as NDPS, UAPA, the parameters for granting bail are made more restrictive as compared to the crimes under the regular penal laws. These restrictive parameters for grant of bail till the conclusion of the investigation will however dissipate on charges being framed and the trial having commenced and this is because of S. 36C which makes the provisions of the CrPC applicable even in respect of offences under the NDPS Act.
[30] Section 36-C of the NDPS Act stipulates that the provisions of the Cr.P.C., including the provisions as to bail and bonds, shall apply to the proceedings before a Special Court, and for that purpose, the Special Court shall be deemed to be a Court of the Session. This would, therefore, indicate that the provisions of the Act or the Cr.P.C. would be applicable even in respect of offences under the NDPS Act.
[31] As far as grant of bail for offences under the NDPS Act, the same are governed by Section 37(1)(b) of the NDPS Act which states that a person accused of an offence under Sections 19, 24 or 27A, and for offences involving commercial quantities, shall not be released on bail unless the two conditions specified therein are satisfied.
[32] Firstly, that the Public Prosecutor has been given an opportunity to oppose the application for release on bail; and Page 12 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined Secondly, where the Public Prosecutor opposes the application, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
[33] It must be stated here that the consideration for grant of bail as contained under Section 37 would be at the stage of investigation i.e., at a stage where the trial is yet to commence. The moment the trial commences, the mandate of Section 436A would kick in by virtue of S.36-C of the NDPS Act and more importantly the overarching principle of the right to a speedy trial under Article 21A of the Constitution would stand attracted.
[34] The Supreme Court in case of Mohd. Muslim alias Hussain versus State (NCT of Delhi) reported in (2023) 18 SCC 166, on consideration of Section 37 of the NDPS Act and also Section 436-A of the Cr.P.C, in relation to an offence under the NDPS Act, has held as follows:-
"16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation16 prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:Page 13 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026
NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined "86....... We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
[35] It is, therefore, clear that the prolonged incarceration would be a factor to be taken into consideration when a person in detention complains of inordinate delay in the trial even in respect of commission of offences under the NDPS Act.
[36] It may also be relevant to state here that Section 309 of the Cr.P.C., contains a statutory mandate that every trial shall be continued from day to day until all the witnesses in attendance have been examined. Section 309 of the Cr.P.C. also seeks to, basically, incorporate the right to a speedy trial guaranteed under Article 21 of the Constitution of India and makes it expressly a statutory obligation.
Page 14 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined [37] Section 19 of the NIA Act2 also states that the trial under the NIA Act of any offence by a Special Court shall be held on a day-to-day basis on all working days, and it also goes on to emphasize that the cases tried by the Special Court would have precedence over the trial of any other case against the accused, and shall be concluded in preference to the trial of such other cases and, if necessary, the trial of other cases are to be kept in abeyance.
[38] The conjoint reading of Section 309 of the Cr.P.C. and Section 19 of the NIA Act would, basically, indicate that the right of a speedy trial, which is declared as a fundamental right under Article 21 of the Constitution of India, is reinforced by a statutory mandate in respect of an offence prosecuted by the NIA before the Special Court. There is, in fact, a right of precedence for a trial also attached. These constitutional and statutory provisions would, therefore, indicate that the right to a speedy trial is not a mere wishful exercise but is required to be necessarily complied as a legal obligation.
[39] Keeping these provisions in mind, and also the statutory mandate of Section 436A of the Cr.P.C., the incarceration of the petitioner, in the present case, will have to be considered.
2 The trial under the NIA Act of any offence by a Special Court shall be held on a day-to- day basis on all working days, and it also goes on to emphasize that the cases tried by the Special Court would have precedence over the trial of any other case against the accused, and shall be concluded in preference to the trial of such other cases and, if necessary, the trial of other cases are to be kept in abeyance.
Page 15 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined [40] As stated earlier, the petitioner has been in custody since 13.08.2018, i.e., for the past 7 ½ years. The NIA has listed a total of 180 witnesses that it wishes to examine to establish the guilt of the accused. However, out of the 180 witnesses cites, so far, only 46 witnesses have been examined and there thus still remains about 134 witnesses to be examined.
[41] Mr. Ankit Shah, learned counsel appearing for the NIA has placed on record the Rojkam, which would indicate that the accused has not sought for time and thereby attempted to delay the trial in any way. In fact, the trial was not been conducted only because of the repeated requests made by the NIA for grant of an adjournment.
[42] The NIA, in fact, chose not to conduct the trial until all the cases were consolidated and transferred to the Court at Ahmedabad, and this would therefore indicate that the petitioner has been in no way responsible for the delay in the trial. Mr. Shah, learned counsel for the NIA, however, argued that the gravity of the offence and the statutory constraints imposed for the grant of bail would have to be considered. It is also submitted that the prima facie indication of the guilt of the accused would also have to be looked it for grant of bail.
[43] As already observed, the granting of bail arises in different circumstances. The first instance where an accused can seek for Page 16 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined bail is when he is arrested and produced before the competent court. Secondly, the accused is conferred a right to be enlarged on bail if the investigation is not concluded within the statutorily prescribed timeline. In other words, as already stated above, the considerations for grinding bail till the trial commences are prescribed by the statutory provisions relating to grant of bail.
[44] However, once the investigation is completed, the final report has been filed by the investigating authority, and the concerned court has also proceeded to frame charges on the basis of the material placed before it, the factors to be considered for grant of bail stand completely changed. On the charges being framed, the law presumes that the court applied its mind to the materials placed before it and has come to the conclusion that there was evidence for charging the accused with the commission of a crime and he is required to be tried.
[45] However, once charges are framed, the statutory provisions also mandate that the trial should be conducted as expeditiously as possible, and the provisions in fact state that it should proceed on a day-to-day basis. As far as the NIA Act is concerned, as observed earlier, the trials get a precedence over the other trials in respect of regular criminal cases, and there is once again an emphasis on conducting the trial on a day-to-day basis.
[46] In the background of this statutory mandate, once the Page 17 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined charges are framed and the trial has commenced, the basic requirement to consider grant of bail is to first ascertain whether has been an inordinate delay in the conduct of trail and thereafter examine the reason for the delay in trial while considering the plea of bail. To put it differently, the only consideration for considering the request of bail by an accused, after the trial has been commenced, would be the delay in the conclusion of the trial and the reasons for such delay.
[47] In a given case, if it is evident that the delay in conducting the trial is not attributable to the accused and the delay can be attributed only to the prosecution, then the judgments of the Hon'ble Supreme Court such as Mohammed Muslim's case cited above regarding prolonged incarceration entitling an accused to bail would come into operation. In the light of this legal position, the argument that the evidence against the accused will have to be considered, even when there is an inordinate delay in trial, cannot be accepted, at least in the present case.
[48] Mr. Shah, learned counsel appearing for the NIA also sought to place reliance in the case of Gulfisha Fatima (supra) to contend that even in respect of a delay in trial, the material against the accused will have to be examined. In Gulfisha Fatima's (supra) case. It has to be stated here that in Gulfisha Fatima's case, the trial was yet to commence and it was still at the investigation stager. The judgment rendered in respect of a Page 18 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined case where the trial was yet to commence, i.e., grant of bail at a pre-trial stage would be wholly inapplicable to a case, such as the instant vcase, where charges have been framed and the trial has commenced and there has also been a prolonged delay in the conclusion of the trial, during the course of which for a period of more than 7 ½ years, the accused has still been in custody. Therefore, the argument of the learned counsel for the NIA cannot be accepted.
[49] In support of the above conclusion, we may notice the following orders passed by the Hon'ble Apex Court in cases relating to NDPS:-
(i) In the case of Ankur Chaudhary versus State of Madhya Pradesh decided on 02.01.2024 in SLP (Criminal) No.4648 of 2024, which was also a case in relation to offences under the NDPS Act and where the accused was in custody for more than 2 years. The Hon'ble Supreme Court has stated as follows:-
"Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered."Page 19 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026
NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined
(ii) In the case of Chintan Rajubhai Panseriya versus The State of Maharashtra decided on 13.11.2025 in SLP (Criminal) No.439 of 2026, in which also offences under the NDPS Act were alleged against the accused and where the accused was in custody for about 4 years. The Hon'ble Apex Court, while granting bail, has observed as follows in paragraph 5:-
"5. We do not undermine the seriousness of the alleged crime. We are mindful of the fact that the prosecution is for the offence punishable under Narcotic Drugs and Psychotropic Substances, Act, 1985. At the same time, we should not overlook the fact that the petitioner is in judicial custody as an under-trial prisoner past 3 years and 6 months and prosecution intends to examine as many as 159 witnesses. Examination of 159 witnesses or even 50% of the same is going to take a pretty long time. At times, we wonder why prosecution wants to examine so many witnesses and thereby prolong the trial and delay the same. We have observed in number of orders that the prosecution should examine important witnesses and try to establish its case. There is no point in multiplying the witnesses on one and the same issue."
(iii) In the case of Rabi Prakash versus The State of Odisha decided on 11.11.2022 in SLP (Criminal) No.4169 of 2023, which also relates to offences under the NDPS Act and where the accused was in custody for over 3 ½ years, in which only 1 out of 19 witnesses had been examined. The Hon'ble Supreme Page 20 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026 NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined Court, while taking into consideration that the conclusion of the trial would take some more time, has held as follows:-
"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned Counsel for the Respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the Petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious Fundamental Right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the Statutory embargo created under Section 37(1)(b)
(ii) of the NDPS Act."
[50] Though several other decisions were cited, in our view only those decisions in which the Hon'ble Apex Court was considering the delay in the conclusion of the trial in respect of offences under the NDPS Act are required to be examined. Accordingly, only those decisions are examined.
[51] To reiterate, since in the present case the appellant has been in custody since 13.08.2018 i.e., for more than 7 ½ years and there is no prospect of the trial being concluded in the near future, as still about 134 witnesses are yet to be examined, a case has been made out to enlarge the appellant on bail, subject to the conditions that may be imposed by the trial court.
Page 21 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026NEUTRAL CITATION R/CR.A/3010/2025 CAV ORDER DATED: 18/03/2026 undefined [52] It is also hereby clarified that the order granting bail to the appellant, who is the 2nd accused, is in the peculiar facts and circumstances of the case, and this order should not be taken into consideration in respect of requests for bail being made by the other accused on the ground of parity, and each claim for grant of bail will have to be examined on the merits of the individual cases and the manner and cause for which the trial has not been concluded.
[53] The present appeal is, therefore, allowed. The appellant is ordered to be enlarged on bail, subject to the conditions that the Trial court may deem necessary to impose.
(N.S.SANJAY GOWDA, J.) (D. M. VYAS, J.) DHARMENDRA KUMAR Page 22 of 22 Uploaded by DHARMENDRA KUMAR(HC01071) on Wed Mar 18 2026 Downloaded on : Wed Mar 18 22:23:06 IST 2026