AKASH KUMAR v. NARCOTICS CONTROL BUREAU

Judgment

#1. By way of the present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”], the applicant seeks regular bail in connection with NCB Crime No. VIII/09/DZU/2024, registered under Sections 8(c)/18(b)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“the NDPS Act”].

#2. I have heard Mr. Pramod Kumar, learned counsel for the applicant, and Mr. Arun Khatri, learned Senior Standing Counsel for the respondent – Narcotics Control Bureau. The prosecution has placed on record a status report dated 24.02.2026. A. PROSECUTION CASE

#3. The prosecution case, as it emerges from the material on record, is as follows: BAIL APPLN. 601/2026 a. On the basis of secret information received on 23.04.2024, two persons, being the applicant herein and a Child in Conflict with Law [“CCL”], were apprehended at 10:05 AM upon their arrival in Delhi. They were travelling on West Bengal Sampark Kranti Express [Train No. 12329], from Gaya, Bihar to Anand Vihar, Delhi. b. The applicant was in possession of a maroon-coloured backpack. Upon searching the bag, a pink-and-white coloured bag containing four transparent polythene packets were recovered, each containing a blackish-brown substance. Upon opening and testing each packet individually, the contents tested positive for opium. Each packet weighed 506 grams, totalling 2.024 kilograms of opium. c. During the preliminary investigation, the applicant and the CCL disclosed the involvement of two more individuals, namely, Dhiraj Kumar and Parmesh Saw, who were stated to be scheduled to arrive at New Delhi Railway Station at 2:00 PM, carrying opium. d. Pursuant thereto, the said persons were apprehended, and Parmesh Saw was found carrying a black-coloured bag. Upon inquiry, he revealed that the bag contained opium. Four packets were recovered from the black bag containing black colour pasty substance, which, upon testing, gave positive results for opium. Two of the packets weighed 506 grams each, while the remaining two weighed 508 grams each, totalling 2.028 kilograms of opium. e. The applicant’s statement under Section 67 of the NDPS Act was recorded, wherein he voluntarily deposed that, on 22.04.2024, his relative, Biru Saw, had contacted him to transport opium to Delhi BAIL APPLN. 601/2026 for a remuneration of Rs. 8,000/-. The applicant further stated that he had been informed that the CCL would accompany him to Delhi, and that further details would be provided upon their arrival. Upon reaching Gaya Junction Railway Station, the applicant and the CCL met Dhiraj Kumar and Parmesh Saw, who disclosed that they were also carrying opium. The applicant disclosed the contact numbers of the said individuals and admitted to having delivered opium on 18-19 prior occasions, including to Alwar, Jaipur, Delhi, Panipat, and Haryana. He further stated that deliveries in Panipat were made to one Pramod, while the deliveries in Rajasthan were made to one Satish @ Kashiram. f. The accused persons, being the applicant, CCL, Dhiraj Kumar and Parmesh Saw, were all arrested on 24.04.2024. g. Upon completion of the investigation, a complaint was filed before the Special Court, citing 15 witnesses. h. The accused persons were working for one Biru Saw, and had travelled to Delhi for the purpose of delivering opium. The total recovery constitutes a commercial quantity [2.5 kilograms and above], as the recoveries of 2.024 kilograms and 2.028 kilograms have been reflected in the same complaint and clubbed together.

#4. The Nominal Roll reflects that, as of 21.02.2026, the applicant had been in judicial custody for a period of 1 year, 9 months, and 28 days. He has thus now been in custody for a period of over 2 years and 1 month.

#5. The applicant’s latest bail application1 was dismissed by the 1 The applicant’s earlier bail application was dismissed on merits by the Special Court vide order dated 20.01.2025. Thereafter, the applicant approached this Court by way of BAIL APPLN. 884/2025; BAIL APPLN. 601/2026 Special Court vide order dated 15.01.2026. The Special Court, inter alia, noted that there was no material change in circumstances warranting consideration of a successive bail application, and that charges had been framed against the applicant under Sections 18(b) and 29 of the NDPS Act, thereby attracting the rigours of Section 37. The Court further observed that it was not a Constitutional Court, so as to grant relief to the applicant on the ground of violation of Article 21 of the Constitution due to delay, if any, in the trial.

B. SUBMISSIONS BY LEARNED COUNSEL FOR THE PARTIES

#6. In support of the present application, Mr. Kumar submitted that, although charges have been framed under Section 18(b) of the NDPS Act, the recovery from the applicant herein was that of an intermediate quantity of opium [2.024 kilograms]. He contended that the further recovery of 2.028 kilograms from co-accused Dhiraj Kumar and Parmesh Saw, who were travelling on another train, ought not to be clubbed. Mr. Kumar also submitted that, despite the seizure having been effected from a railway station, no CCTV footage was obtained, nor was the seizure documented by way of photography or videography. Lastly, he submitted that the applicant has been in custody for over 2 years, and that the trial is likely to take considerable time, with only 2 out of 15 prosecution witnesses having been examined.

#7. Mr. Khatri, on the other hand, argued that the applicant and the three co-accused persons are relatives, who were acting in concert, on the instructions of Biru Saw, to supply drugs to several parts of the country. He further submitted that the recovery from co-accused Dhiraj Kumar however, the said application was withdrawn with liberty vide order dated 10.10.2025. BAIL APPLN. 601/2026 and Parmesh Saw was pursuant to the disclosure statement of the applicant, and hence, the recoveries have rightly been clubbed, making the rigours of Section 37 of the NDPS Act applicable to the present case. With regard to the photography/videography of the seizure, Mr. Khatri submitted that this is a matter for trial. C. ANALYSIS

#8. In the present case, charges have been framed against the applicant under Sections 18(b) and 29 of the NDPS Act. On this basis, the rigours of Section 37 of the NDPS Act are prima facie attracted. However, even in such a case, the Court is required to consider the period of custody of the applicant, which is now over 2 years and 1 month, and the likelihood of a prolonged trial. The prosecution has cited 15 witnesses, of which only 2 have been examined thus far. This factual situation requires consideration of the applicant’s request for bail in light of the constitutional guarantee of a speedy trial under Article 21.

#9. Even in cases to which Section 37 of the NDPS Act is applicable, the Supreme Court has consistently held that these constitutional principles also require consideration in applications for bail by undertrials, who have been in custody for long periods, without likelihood of expeditious conclusion of the proceedings. Reference in this connection may be made to judgments/orders inter alia in Jitendra Jain v. Narcotics Control Bureau and Anr.2, Dheeraj Kumar Shukla v. State of Uttar Pradesh3, Mohd. Muslim v. State (NCT of Delhi)4, Rabi Prakash v. 2 2022 SCC OnLine SC 2021. 3 2023 SCC OnLine SC 918, paragraph 3. 4 (2023) 18 SCC 166 [hereinafter, “Mohd. Muslim”]. BAIL APPLN. 601/2026 State of Odisha5. In Mohd. Muslim, the Court relied inter alia upon Union of India v. K.A. Najeeb6 and Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India and Ors.7, the latter judgment having been rendered in the context of the NDPS Act. It was held that, even where statutory restrictions on the grant of bail are applicable, the Court is required to assess the merits on a prima facie basis, rather than to come to a finding of the likelihood of guilt beyond reasonable doubt.

#10. In Rabi Prakash also, the Court reiterated the aforesaid principles in the following terms: “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.”8

#11. Reference may also be made to the recent decision in State of Punjab v. Sukhwinder Singh @ Gora9, in which the Supreme Court has mandated a holistic consideration of the relevant factors under Article 21 of the Constitution, as well as Section 37 of the NDPS Act, as both provisions “are to be read harmoniously”10.