Full Judgement
Bombay High Court
Manish Mathurbhai Serasia@Rawal vs Union Of India on 5 February, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:7127
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2581 OF 2023
Bhanudas Vasantrao More @ Aditya Patil ...Applicant
vs.
Union of India and Another ...Respondents
WITH
BAIL APPLICATION NO.2616 OF 2023
Manish Mathurbhai Serasia @ Rawal ...Applicant
vs.
Directorate of Revenue Intelligence,
Mumbai Zonal Unit, Mumbai ...Respondent
Mr. Taraq Sayed a/w. Ms. Ashwini Achari and Ms. Alisha Parekh,
for the Applicants.
Mr. Advait Sethna a/w. Mr. Rangan Majumdar i/b. Mr. Raju
Thakker, for Respondent No. 1-UOI.
Mr. M.G. Patil, APP, for the Respondent/State.
CORAM : N. J. JAMADAR, J.
DATE : FEBRUARY 5, 2024
P.C.:
1. The applicants who are arraigned in C.R. No. 43 of 2017
registered with D.R.I., Mumbai Zonal Unit for the offences
punishable under sections 8(c), 22(c), 25, 27A and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS
Act, 1985) seek to be enlarged on bail.
2. The applicants were arrested on 20th March, 2017. These
applications are preferred primarily on the ground of long
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incarceration of the applicants without a real prospect of the
conclusion of the trial in NDPS Special Case No. 79 of 2017 arising
out of C.R. No. 43 of 2017.
3. The applicants are in custody for more than six years. The
applicants assert though charge has been framed in Special Case
No. 79 of 2017 yet till date not a single witness has been examined
by the prosecution. Therefore, the applicants deserve to be enlarged
on bail.
4. The applicants have referred to a number of judgments of the
Supreme Court, this Court and other High Courts to lend support to
their claim that long incarceration without trial infringes their
fundamental right under Article 21 of the Constitution of India and
thus they deserve to be released on bail.
5. An affidavit in reply is filed (in BA No. 2581 of 2023) on behalf
of the respondent No.1- UOI. The applicant Bhanudas More is
alleged to be a known drug trafficker. He had been involved in many
drug trafficking cases. He was convicted and was detained in prison
till 2007. In another case, the applicant was declared an absconder.
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6. The respondents contend that since both the applicants were
found manufacturing Mephedrone (MD) and a huge quantity of
contraband has been recovered from the possession of the
applicants, the rigor contained in section 37 of the NDPC Act, 1985
operates with full force. There is no ground to believe that the
applicants have not committed the alleged offences. Having regard
to the antecedents of the applicants, especially that of Bhanudas
More, the applicant in BA No. 2581 of 2023, the Court can not draw
an inference that, if released on bail, the applicants will not commit
identical offences. In the backdrop of the nature of the accusations
and the material against the applicant, according to the
respondents, mere long period of incarceration does not entitle the
applicants to bail.
7. I have heard Mr. Taraq Sayed, the learned counsel for the
applicants, Mr. Advait Sethna, the learned Spl. P.P. for respondent
No. 1-UOI and Mr. M.G. Patil, learned APP, for the respondent-State.
8. To begin with, it may be necessary to note the nature of the
indictment against the applicants. It is alleged a specific intelligence
was received by the officers of DRI that the applicant Bhanudas
More along with Manish Serasia @ Rawal, the applicant in BA No.
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2616 of 2023 and his associates Rauf Lulania and Wazhul
Chaudhary had hired a factory premises, Rainbow Paints, Palghar
Taluka Industrial Estate, Boisar Road, Palghar and were
clandestinely manufacturing Mephedrone (MD). A batch of MD in
slurry form was likely to be removed from the said premises on 19 th
March, 2017. Pursuant thereto, a search was conducted at the
premises of M/s. Rainbow Paints. 238.20 kgs. of slurry purported to
be containing MD was found thereat. The co-accused Rauff Lulania
(accused No. 3) and Manish Serasia (applicant/accused No. 4) were
also present in the factory premises and they were apprehended.
9. A search was conducted at the residential premises of the
applicant Bhanudas More at Pratik Row House, Rustomjee Global
City, Virar (w). Eight silver foil packets containing 8.126 kg black
coloured substance purported to be Ganja, 20 gms of brownish
coloured powder purported to be MD, one plastic box containing
brown coloured liquid and undissolved crystals purported to be MD,
one plastic bag containing white coloured substance in lump form
weighing 1.9 kg, which appeared to be raw material for
manufacturing of MD, and other incriminating articles were seized.
The applicants and co-accused came to be arrested on 20 th March,
2017.
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10. Indisputably, the applicants are in custody for almost seven
years. Though charge has been framed in NDPS Special Case No. 79
of 2017, recording of evidence of witness has yet not commenced.
11. In the backdrop of aforesaid position, Mr. Taraq Sayed,
learned counsel for the applicants, submitted that the prolonged
period of incarceration without the possibility of conclusion of trial
within a reasonable period has consistently been considered to be a
ground to set an accused at liberty even in cases in which there are
statutory restrictions in the matter of grant of bail, like under
section 37 of the NDPS Act, 1985.
12. Mr. Taraq Sayed urged that the slow pace of the trial can be
gauged from the fact that the charge came to be framed prior to six
months ago only and till date no witness has been examined. The
prosecution proposes to examine as many as 39 witnesses. It is
extremely unlikely that the trial can be concluded within a
reasonable period. In such a situation, conditional personal liberty
must out weigh the statutory restrictions in the matter of grant of
bail, urged Mr. Sayed.
13. To bolster up this submission, Mr. Sayed placed reliance on a
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number of judgments of the Supreme Court and this Court. Making
reference thereto, it was urged that this Court has exercised the
discretion to release the accused on bail even in cases where the
period of incarceration of the applicant was relatively less. Mr.
Sayed would urge that the alleged gravity of the offences and
antecedent of Bhanudas More sought to be pressed into service on
behalf of respondent No. 1 do not preclude the Court from
exercising its discretion.
14. It was submitted by Mr. Sayed that in NDPS Special Case No.
49 of 2001, in which the applicant Bhanudas More was convicted by
the Special Judge, this Court by a judgment and order dated 31 st
January, 2018 has set aside the conviction and acquitted the
applicant Bhanudas More. In Special Case No. 226 of 2015 arising
out of C.R. No. 64 of 2015, the learned Special Judge has released
the applicant Bhanudas on bail, on merits. Therefore, the alleged
gravity of the offences and antecedents of the applicant Bhanudas
cannot be pressed into service to further curtail the personal
liberty of the applicant Bhanudas. Mr. Sayed would further urge
that there is no antecedent to the discredit of the applicant Manish
Serasia. Resultantly, it can be inferred that the applicant Manish
would not indulge in identical offences if released on bail.
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15. Mr. Sayed placed reliance, inter alia, on the judgments of the
Supreme Court in the cases of :
(i) Rabi Prakash vs. The State of Odisha1;
(ii) Mohd. Muslim @ Hussain vs. State (NCT of Delhi)2
(iii) Jitendra Jain vs. NCB and Anr.3
(iv) Tapan Das vs. Union of India4
(v) Supreme Court Legal Aid Committee Representing
Undertrial Prisoners vs. Union of India and Others5
And the decisions of this Court in the cases of
(i) Ellangal Shimjid vs. The State of Maharashtra6
(ii) Peter Okonkwo Igwedimma vs.The State of Maharashtra7
(iii) Ranjit Laxman Tanpure vs. Intelligence Officer and Anr.8
(iv) Ugochukwu Duke Ogboke vs. The State of Goa and Ors.9
(v) Pramod Krishna Pandey vs. The State of Maharashtra10
16. In opposition to this, Mr. Sethna, learned Spl.P.P. for
respondent No. 1 laid emphasis on the fact that the nature of the
accusations against the applicants is grave. It is not a case of
conscious possession, but of manufacturing of contraband articles.
A huge quantity of MD was recovered from the factory premises of
Rainbow Paints, where the applicants were manufacturing MD.
1 Sp.L.to Appeal (Cri.) No.4169 of 2023, Dt.13/07/23.
2 2023 SCC OnLine SC 352.
3 Sp.L.to Appeal (Cri.) No.8900/2022 Dt.16/12/22.
4 Sp.L.to Appeal (Cri) No.5617/2021, Dt. 07/10/21
5 (1994) 6 Supreme Court Cases, 731.
6 BA No.2635/2022 Dt.19/07/2023
7 BA No.2197/2022 Dt.07/01/2023.
8 BA No.3062/2021 Dt.06/12/2022
9 BA No.647/2021, Dt.24/02/2022.
10 BA No.2103/2021 Dt.03/08/2021
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Moreover, contraband articles were also recovered from the
residence of the applicant Bhanduas More. Release of the applicants
on bail, in such circumstances, would run counter to the legislative
object of prescribing the restrictions under section 37 of the NDPS
Act, 1985 in the matter of grant of bail.
17. Mr. Sethna laid emphasis on the fact that the rigor contained
in section 37 of the NDPS Act, 1985 operates with full force and
there is no ground for which the Court would be justified in
recording a finding that the applicants are not guilty of the offences
for which they have been charged and would not indulge in identical
offences if released on bail. On the contrary, the antecedents of the
applicant Bhanudas More suggest that there is a strong possibility
of accused again indulging in drug trafficking.
18. Mr. Sethna, further submitted that despite accused having
been incarcerated for a long period, the Supreme Court and the
High Courts have declined to exercise the discretion in favour of the
accused where there is strong material to implicate them. Mr.
Sethna, placed reliance on the decisions of the Supreme Court in
the cases of
(i) Narcotics Control Bureau vs. Mohit Aggarwal11
11 MANU/SC/899/2022
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(ii) Sheru vs. Narcotics Control Bureau12
(iii) Union of India vs. Ajay Kumar Singh @ Pappu13
(iv) Union of India vs. Sujeet Khatua Etc.14
(v) Narcotics Control and Bureau vs. Bal Mukund Kumar
Nirala @ Rahul and Anr.15
19. To bolster up the submission that an accused who is charged
for the offences punishable under section NDPS Act, 1985 in respect
of commercial quantity, cannot be released on bail without
recording a satisfaction that the twin test envisaged by section 37
of the NDPS Act,1985 stands satisfied, Mr. Sethna placed reliance
on the judgment of Mohit Aggarwal (supra).
20. Mr. Sethna would urge that though the applicants have been
incarcerated for more than six years yet the prosecution deserves
an opportunity to make an effort to expeditiously conclude the trial.
In the circumstances of the case, according to Mr. Sethna, this
Court would be justified in expediting the trial instead of releasing
the accused on bail. To lend support to this submission, Mr. Sethna
invited attention of the Court to the decisions of the Supreme Court
in the cases of:
12 MANU/SC/814/2020.
13 Supreme Court, Cr.A.No.952/2023 Dt.28/03/2023
14 Sp.L.to Appeal (Cri) Diary No. 34587/2023 Dt. 27/09/23
15 Sp.L.to Appeal (Cri) No. 2521/2018.
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(i) Union of India (NCB) Etc. vs. Khalil Uddin Etc.16
(ii) Sabit Ali Mondal vs. The State of West Bengal17
And the decisions of this Court, in the cases of
(i) Dhananjay Braj Narayanlal Srivastav vs. Union of India & Anr.18
(ii) Mohamed Sikander Cheemu vs. Union of India and Anr.19
And the decision of Kerala High Court in the case of
Nandakumar N. vs. State of Kerala20
21. Section 37 of the NDPS Act, 1985 which begins with non-
obstante clause contains an interdict against releasing a person
accused of committing offences punishable under sections 19 or
section 24 or section 27-A and also for offences involving
commercial quantity, unless the public prosecutor has been given
an opportunity to oppose the application for such release and where
the public prosecutor opposes the application, the Court is satisfied
that there are reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any offence while
on bail.
22. Sub section (2) of Section 37 further emphasises that the
16 Cr.A. No. 1841-1842/ 2022 Dt.21/10/2022.
17 SLP (Cri) Diary No. 20289/2023, Dt. 29/05/2023
18 BA No.2950/2022 Dt.31/01/2023.
19 BA No.1618/2022, Dt.12/07/2023.
20 BA No.5596/2022 Dt. 03/08/2023.
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limitations on granting of bail specified in clause (b) of sub section
(1) are in addition to the limitations under the Code of Criminal
Procedure, 1973 or any other law for the time being in force, on
granting of bail.
23. Parliament has incorporated such restrictions in the matter
of grant of bail to the person accused of grave offences under NDPS
Act, 1985 keeping in view the deleterious effect and devastating
impact those offences have on society. Satisfaction of the Court that
the accused will not indulge in identical offence becomes necessary
as there is an apprehension that the person released on bail may
again indulge in the nefarious activity of trafficking in drugs.
Parliament has thus used the expression, "reasonable ground"
which implies something more than prima facie ground. In the case
of State of Kerala vs. Rajesh and Others21 the Supreme Court
expounded the connotation of term, "reasonable grounds' in the
context of restrictions contained in section 37 of the NDPS Act,
1985, as under:-
The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for
believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the
21 MANU/SC/0084/2020.
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provision requires existence of such facts and
circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the
alleged offence. In the case on hand, the High Court
seems to have completely overlooked the underlying
object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time
being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is
indeed uncalled for.
24. By a catena of judgments, the legal position is fairly
crystallized that the Court has no jurisdiction to grant bail to an
accused whose case falls within the ambit of section 37(1) of the
NDPS Act, 1985 without recording a finding that the twin test
envisaged by sub clause (b) of sub section (1) of Section 37 of the
NDPS Act, 1985, adverted to above, stands satisfied.
25. In the case at hand, as noted above, the applicants are seeking
bail primarily on the ground of long incarceration. Even otherwise,
the allegations and material pressed into service against the
applicants are such that the interdict contained in section 37 of the
NDPS Act, 1985 is clearly attracted. In this proceeding, no
endeavour is made on behalf of the applicants to demonstrate that
the applicants may not be guilty of the offence for which they stand
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charged. The claim for bail rests solely on prolonged incarceration.
26. Undoubtedly, there is a definite legislative purpose in
providing additional restrictions in the matter of grant of bail,
having regard to the gravity of the offences and the necessity to
arrest the menace of drug trafficking. The restrictions in the matter
of grant of bail under NDPS Act, 1985 and other enactments like
MCOCA and UAPA etc., are based on the premise that the trial in
such matters ought to be concluded expeditiously and that premise
has been held to constitute a justification for such stringent
provisions in the matter of grant of bail.
27. As against this interest of society, long incarceration of an
accused, without a real prospect of conclusion of trial within a
reasonable period, gives rise to a competing interest of the accused
an account of unjustified deprivation of personal liberty for an
unreasonably long period as an under trial prisoner.
28. It is in the context of these competing interests, it has been
held that the deprivation of right to speedy trial infringes the right
to life and personal liberty guaranteed under Article 21 of the
Constitution of India. The statutory restrictions in the matter of
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grant of bail melt down in the face of unreasonably long period of
incarceration.
29. A useful reference in this context can be made to the decision
of the Supreme Court in the case of Supreme Court Legal Aid
Committee (supra) wherein the Supreme Court directed the release
of under trial prisoners who were accused of the offences
punishable under NDPS Act, 1985, albeit as a one time direction,
with clarification that those directions were not intended to
interfere with the Special Court's power to grant bail under section
37 of the NDPS Act, 1985. It was, inter alia, observed that-
(ii) Where the undertrial accused is charged with an
offence(s) under the Act providing for punishment
exceeding five years and fine, such an undertrial shall
be released on bail on the term set out in (i) above
provided that his bail amount shall in no case be less
than Rs 50,000 with two sureties for like amount.
30. In the case of Mohd. Muslim @ Hussain (supra), the Supreme
Court, inter alia, observed that grant of bail on ground of undue
delay in trial, cannot be said to be fettered by Section 37 of the Act,
given the imperative of Section 436A which is applicable to offences
under the NDPS Act too.
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31. In the case of Rabi Prakash (supra), the Supreme Court
observed as under:-
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 1 st
condition stands complied with. So far as the 2 nd
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.
32. As against this, there is a body of judgments, on which
reliance was placed by Mr. Sethna, wherein, it has been observed
that mere long period of incarceration cannot be a ground for grant
of bail in the face of statutory restrictions. In the case of Sheru vs.
NCB (supra) the Supreme Court, in the context of suspension of
sentence of a convict, observed that mere passage of time cannot be
a reason for bail.
33. In the case of Union of India V/s. Sujeet Khatua Etc.22 while
granting bail in the case of Sujeet Khatua etc. V/s. Union of India,
22 Petition(s) for Special Leave to Appeal (Cri.) Diary No.34587 of 2023 dt. 27 September 2023
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the High Court had made the following observations :
"...... To make it clear, the provision contained in
Section 436-A of 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...."
34. In the context of the aforesaid observations, the
Supreme Court observed as under :
"Though we are not interfering with the
impugned order on merits, we make it clear
that we have not approved the aforesaid
observations."
35. In a situation of this nature, in my considered view, the
gravity of the offences and the peculiar facts of the case must enter
the determination. The accusation against the Applicants deserves
to be kept in view. It is alleged, the applicants were involved in
manufacturing of MD and a large quantity of contraband was
recovered from the factory premises where the applicants were
allegedly manufacturing MD.
36. I find substance in the submission of Mr. Sethna that it is not a
case where a drug peddler is found in possession of a commercial
quantity of the contraband. The gravity of the allegations can be
gauged from the fact that the applicants were allegedly indulging in
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manufacturing of MD for a period of time before they were allegedly
apprehended. The alleged activity had, going by the allegations of
the prosecution, an element of continuity and repetitiveness with
the potential of having manufactured and supplied large quantity of
the contraband and thereby defeated the object of the Act, 1985
37. In the aforesaid view of the matter, though the period of
incarceration is inordinate, the prosecution deserves an
opportunity to lead evidence to substantiate the grave indictment
against the applicants before they are released.
38. In the totality of the circumstances, a direction for
expeditious conclusion of the trial with liberty to the applicants to
again move for bail in the event the trial is not concluded within the
stipulated period would be in consonance with the object of the Act,
1985.
39. Hence, the following order :
ORDER
1] The applications stand rejected.
2] The learned Special Judge seized with NDPS Case No.79 of
2017 arising out of C.R.No.43 of 2017 registered with D.R.I. Mumbai
Zonal Unit is requested to conclude the trial in the said NDPS Case
as expeditiously as possible and preferably within a period of six
months from the date of communication of this order.
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3] The learned Special Judge is requested to give due priority for
hearing of the said NDPS Case having regard to the long period of
incarceration of the applicants, and, if possible, allocate time on at
least 2 to 3 days in a week for hearing of the said NDPS Case.
4] The prosecution shall keep all the material witnesses present
for examination and shall not seek any adjournment.
5] The accused shall also co-operate with the expeditious
conclusion of the trial and shall not seek adjournment.
6] In the event the trial is not concluded within the said period of
six months, the applicants shall have the liberty to renew the
prayer for bail before this Court.
7] By way of abundant caution, it is clarified that the observations
made hereinabove are confined for the purpose of determination of
the entitlement for bail and they may not be construed as an
expression of opinion on the guilt or otherwise of the applicant and
the trial Court shall not be influenced by any of the observations
made hereinabove.
(N. J. JAMADAR, J.)
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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 13/02/2024 20:57:52
