He further submitted that Apex Court in the case of Mohd. Muslim alias Hussain v. State

1. Heard Sri Shashi Kumar Mishra and Urvesh Kumar, learned counsel for the applicant and Sri Imran Khan, learned AGA for the State-respondent.

2. The instant second bail application has been filed seeking release of the applicant on bail in Case Crime No. 50 of 2024, under Sections 8/22 NDPS Act, Police Station Sidhpura, District Kasganj, during pendency of the trial in the court below.

3. Learned counsel for the applicant submitted that this is the second bail application filed on behalf of the applicant. The first bail application of the applicant has been dismissed by this Court after considering the fact that from his possession 750 gm daizapam powder was recovered which was the commercial quantity and applicant is also having criminal history of 24 other cases but in the present matter applicant is in jail since 7.3.2024 i.e. for last more than one and half years and till date, out of 7 prosecution witnesses only one prosecution witness has been examined and therefore, trial of the case is moving with languid pace and there is no hope of its early disposal.

4. He further submitted that however, apart from the present case applicant is having criminal history of 24 cases, but applicant is not having any other criminal history of NDPS Act and his entire criminal history has been explained in the instant bail application and from perusal of the criminal antecedents, it reflects that in all the cases, during investigation applicant has been made accused and all the cases is up to the year 2019 except one case which is of the year 2021, therefore, it cannot be said that after released on bail, applicant will again indulge in commission of such offences.

5. He further submitted that Apex Court in the case of Mohd. Muslim alias Hussain Vs. State (NCT of Delhi) 2023 SCC OnLine SC 352 observed that even in the cases of NDPS Act on the ground of long incarceration an accused can be released on bail.

6. He further submitted that therefore, considering the facts and circumstances of the case as argued above, applicant may be enlarged on bail. 2 BAIL No. 24701 of 2024

7. Per contra, learned AGA opposed the prayer for bail and submitted that this is second bail application filed on behalf of the applicant and after considering entire facts of the case, first bail application of the applicant was dismissed by this Court on merit and as per allegation from the possession of applicant commercial quantity of daizapam powder was recovered but he could not dispute the fact that applicant is in jail in the present matter for last more than one and a half years and till date out of 7 prosecution witnesses only one witness could be examined.

8. He however further submitted that apart from the present case applicant is having criminal history of 24 other cases but he again could not dispute the fact that apart from present case applicant is not having any other criminal history of NDPS Act and his entire criminal history has been explained in the instant bail application and all the cases are up to the year 2019 except one case which is of the year 2021 and in almost all the cases, during investigation applicant has been made accused.

9. I have heard learned counsel for the parties and perused the record of the case.

10. However, this is the second bail application filed on behalf of the applicant and first bail application, of the applicant has been dismissed after considering the fact that from the possession of the applicant commercial quantity of daizapam powder was recovered and he is also having criminal history of 24 other cases but it reflects in the present matter applicant is in jail since 7.3.2024 i.e. for last more than one and half years and considering his long incarceration, a report was called from the court concerned which is now on record and from its perusal it reflects that out of 7 prosecution witnesses, till date only one could be examined, therefore, it appears that the trial of the case is moving with languid pace and there is no hope of its early disposal.

11. Further, however, as per section 37 of the NDPS Act in the cases of commercial quantity an accused should not be released on bail unless and until in view of the Court, there are reasonable ground to believe that he is not guilty and he is not likely to commit any offence while on bail but Apex Court in the case of Mohd. Muslim(supra) on which reliance was placed by learned counsel for the applicant held that in NDPS Act though there is stringent provision of section 37 of NDPS Act but on the ground of long incarceration this Court can enlarge the accused on bail considering the provision of Article 21 of the Constitution of India.

12. Further, however, applicant is having criminal history of 24 other cases but he is not having any other criminal history of NDPS Act and his entire criminal history has been explained in the instant bail application and it reflects that in all the cases he has been made accused during investigation and majority of the case were of the year 2019 except one case which is of the year 2021.

13. Further, the Apex Court in the case of Ayub Khan Vs. State of Rajasthan, 2024 3 BAIL No. 24701 of 2024 SCC OnLine SC 3763 in paragraph-10 observed as follows:- "10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents....."

14. Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is entitled to be released on bail.

15. Accordingly, without expressing any opinion on the merits of the case, the instant second bail application is allowed.

16. Let the applicant-Boby @ Shivanand, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

17. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

18. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. October 13, 2025 Ankita (Sameer Jain,J.) ANKITA SRIVASTAVA High Court of Judicature at Allahabad

1. Heard Sri Shashi Kumar Mishra and Urvesh Kumar, learned counsel for the applicant and Sri Imran Khan, learned AGA for the State-respondent.

2. The instant second bail application has been filed seeking release of the applicant on bail in Case Crime No. 50 of 2024, under Sections 8/22 NDPS Act, Police Station Sidhpura, District Kasganj, during pendency of the trial in the court below.

3. Learned counsel for the applicant submitted that this is the second bail application filed on behalf of the applicant. The first bail application of the applicant has been dismissed by this Court after considering the fact that from his possession 750 gm daizapam powder was recovered which was the commercial quantity and applicant is also having criminal history of 24 other cases but in the present matter applicant is in jail since 7.3.2024 i.e. for last more than one and half years and till date, out of 7 prosecution witnesses only one prosecution witness has been examined and therefore, trial of the case is moving with languid pace and there is no hope of its early disposal.

4. He further submitted that however, apart from the present case applicant is having criminal history of 24 cases, but applicant is not having any other criminal history of NDPS Act and his entire criminal history has been explained in the instant bail application and from perusal of the criminal antecedents, it reflects that in all the cases, during investigation applicant has been made accused and all the cases is up to the year 2019 except one case which is of the year 2021, therefore, it cannot be said that after released on bail, applicant will again indulge in commission of such offences.

5. He further submitted that Apex Court in the case of Mohd. Muslim alias Hussain Vs. State (NCT of Delhi) 2023 SCC OnLine SC 352 observed that even in the cases of NDPS Act on the ground of long incarceration an accused can be released on bail.

6. He further submitted that therefore, considering the facts and circumstances of the case as argued above, applicant may be enlarged on bail. 2 BAIL No. 24701 of 2024

7. Per contra, learned AGA opposed the prayer for bail and submitted that this is second bail application filed on behalf of the applicant and after considering entire facts of the case, first bail application of the applicant was dismissed by this Court on merit and as per allegation from the possession of applicant commercial quantity of daizapam powder was recovered but he could not dispute the fact that applicant is in jail in the present matter for last more than one and a half years and till date out of 7 prosecution witnesses only one witness could be examined.

8. He however further submitted that apart from the present case applicant is having criminal history of 24 other cases but he again could not dispute the fact that apart from present case applicant is not having any other criminal history of NDPS Act and his entire criminal history has been explained in the instant bail application and all the cases are up to the year 2019 except one case which is of the year 2021 and in almost all the cases, during investigation applicant has been made accused.

9. I have heard learned counsel for the parties and perused the record of the case.

10. However, this is the second bail application filed on behalf of the applicant and first bail application, of the applicant has been dismissed after considering the fact that from the possession of the applicant commercial quantity of daizapam powder was recovered and he is also having criminal history of 24 other cases but it reflects in the present matter applicant is in jail since 7.3.2024 i.e. for last more than one and half years and considering his long incarceration, a report was called from the court concerned which is now on record and from its perusal it reflects that out of 7 prosecution witnesses, till date only one could be examined, therefore, it appears that the trial of the case is moving with languid pace and there is no hope of its early disposal.

11. Further, however, as per section 37 of the NDPS Act in the cases of commercial quantity an accused should not be released on bail unless and until in view of the Court, there are reasonable ground to believe that he is not guilty and he is not likely to commit any offence while on bail but Apex Court in the case of Mohd. Muslim(supra) on which reliance was placed by learned counsel for the applicant held that in NDPS Act though there is stringent provision of section 37 of NDPS Act but on the ground of long incarceration this Court can enlarge the accused on bail considering the provision of Article 21 of the Constitution of India.

12. Further, however, applicant is having criminal history of 24 other cases but he is not having any other criminal history of NDPS Act and his entire criminal history has been explained in the instant bail application and it reflects that in all the cases he has been made accused during investigation and majority of the case were of the year 2019 except one case which is of the year 2021.

13. Further, the Apex Court in the case of Ayub Khan Vs. State of Rajasthan, 2024 3 BAIL No. 24701 of 2024 SCC OnLine SC 3763 in paragraph-10 observed as follows:- "10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents....."

14. Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is entitled to be released on bail.

15. Accordingly, without expressing any opinion on the merits of the case, the instant second bail application is allowed.

16. Let the applicant-Boby @ Shivanand, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

17. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

18. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. October 13, 2025 Ankita (Sameer Jain,J.) ANKITA SRIVASTAVA High Court of Judicature at Allahabad