Order 9

Order Details: COPY OF ORDER
Pdf Text: Regular Bail Application
FIR No. 86/24, State Vs. Javed Ali
PS Crime Branch, U/s 21/25/29 NDPS Act
01.12.2025
This is an application U/s 483 of BNSS, 2023
seeking grant of regular bail to the applicant/ accused Javed Ali.
Present: Sh. K.P. Singh, Ld. Addl. PP for State.
Sh. Kundan Kumar, Ld. counsel for applicant/
accused.
IO ASI Sudhir Kumar in person.
Reply to the bail application is already filed. Copy
already supplied.
Arguments heard on the bail application of the
applicant/ accused.
Ld. counsel for the applicant/ accused submits that at
the time of arrest of applicant/ accused, grounds of arrest were
not supplied to him. In support of that, he has drawn attention of
this Court on the arrest memo of applicant/ accused.
He further submits that as per Section 51 of NDPS
Act, provisions Cr.P.C. are applicable in cases relating to NDPS
Act. He further submits that as per Section 50 Cr.P.C., police was
supposed to supply grounds of arrest to the applicant/ accused
but no grounds of arrest were supplied to the applicant/ accused
at the time of his arrest, therefore, applicant/ accused is entitled
to be released on bail on this ground only.
In support of that, he has relied upon
Mihir Rajesh
Shah Vs. State of Maharashtra & Anr., Crl. Appeal No. 2195/25,
decided on 06.11.2025.
Ld. counsel for applicant/ accused further argues
that the premises of the applicant/ accused were searched
between the sun-set and sun-rise. IO had allegedly obtained the
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authorization to search the premises of the applicant/ accused.
Copy of said authorization is annexed with the bail application.
According to him, the said authorization is dated 22.04.2024 but
according to him, secret information U/s 42 NDPS Act was sent
to ACP concerned only on 23.04.2024. Thus, according to him,
authorization was issued by ACP concerned even before
receiving the information and therefore, this is
nonest in the eyes
of law and it is worthless. Thus, according to him, police has not
followed the procedure as prescribed under law and therefore,
applicant/ accused is entitled to be released on bail.
Per contra, Ld. Addl. PP for the state as well as IO
have vehemently opposed the bail application stating that the
commercial quantity of Heroin was recovered from the
possession of the applicant/ accused, therefore, Section 37 of
NDPS Act is applicable and applicant/ accused has to satisfy the
twin conditions as provided U/s 37 of NDPS Act.
It is further argued that the judgment of
Mihir
Rajesh Shah Vs. State of Maharashtra & Anr.(supra), was
pronounced by the Hon’ble Supreme Court of India on
06.11.2025, therefore, said judgment cannot be applied
retrospectively. They further argue that before the aforesaid
judgment, there were judgments
State of Karnataka Vs. Sri
Darshan, 2025 SCC OnLine SC 1702 & Kasireddy Upender
Reddy Vs. State of Andhra Pradesh & Ors., 2025 SCC OnLine
SC 1228 and according to them, even oral information regarding
grounds of arrest is sufficient to make aware the accused as to
why he has been arrested. Therefore, they submit that the present
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ground does not entitle the applicant/ accused to be admitted to
bail.
They further argue that another contention of
accused/ applicant regarding non-compliance of Section 41 & 42
of NDPS Act has already been decided by the Ld. Predecessor of
this Court vide order dated 11.03.2025 as that is the matter of
trial and it would be immature to give any opinion at this stage
regarding compliance of aforesaid Section. Therefore, they
request that the bail application should be dismissed.
In rebuttal, Ld. counsel for applicant/ accused
submits that the Hon’ble Supreme Court of India has upheld the
provisions of Article 22 of Constitution of India which is
applicable since 26.01.1950 as well as provision as provided U/s
50 Cr.P.C., which is applicable since 1973.
Submissions considered. Record perused.
Ld. counsel for applicant/ accused has contended
that no grounds of arrest were supplied to the applicant/ accused
at the time of his arrest, therefore, he is entitled to be released on
bail and in support of that he has relied upon
Mihir Rajesh Shah
Vs. State of Maharashtra & Anr. (supra).
Ld. counsel for applicant/ accused has specifically
relied upon paras no. 54 and 56 of the aforesaid judgment
wherein Hon’ble Supreme Court of India has
inter alia held that
accused is entitled to be supplied grounds of arrest either at the
time of arrest or as soon as possible but at least before two hours
of his production before the concerned Court.
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This Court has gone through the said judgment.
Para no. 58 of the said judgment is reproduced as below :-
“58. We are cognizant that there existed no consistent or
binding requirement mandating written communication of the
grounds of arrest for all the offences. Holding as above, in our
view, would ensure implementation of the constitutional rights
provided to an arrestee as engrafted under Article 22 of the
Constitution of India in an effective manner. Such clarity on
obligation would avoid uncertainty in the administration of
criminal justice. The ends of fairness and legal discipline
therefore demand that this procedure as affirmed above shall
govern arrests henceforth.”
Thus, the Hon’ble Supreme Court of India itself has
mentioned that the procedure as affirmed above shall govern
arrests ‘henceforth’. The said judgment has been passed by the
Hon’ble Supreme Court of India on 06.11.2025. The present
matter pertains to FIR dated 15.04.2024, therefore, present
judgment is not applicable upon the present facts and
circumstances of the case as the abovesaid judgment is not
applicable retrospectively.
It is also observed that in Cr.P.C. and in NDPS Act,
no specific formate of providing grounds of arrest has been
provided. As per record, notice U/s 50 of NDPS Act was served
upon the applicant/ accused at the time of his search. In the said
notice, it is specifically mentioned to the effect that there was
chances of recovery of Heroin from him and therefore, he was
given option to be searched before Gazetted Officer or
Magistrate but he refused to avail such option. IO has also
mentioned in the arrest memo of the applicant/ accused that 355
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gram Heroin was recovered from his possession and tehrefore, he
was arrested.
In the considered opinion of this Court, prime object
of informing the grounds of arrest to any accused is to make him
understand as to why he has been arrested, here, the IO had duly
informed the accused/ applicant as to why he has been arrested,
therefore, it cannot be said that the applicant/ accused was not
made aware about the grounds of his arrest, therefore, this
contention of Ld. counsel for applicant/ accused is rejected being
not tenable.
The another contention raised by the Ld. counsel for
applicant/ accused that Sections 41 & 42 of NDPS Act were not
followed by the IO is also not tenable as similar ground was
taken by him during arguments on previous bail application. The
Ld. Predecessor of this Court has rejected the said contention
vide bail order dated 11.03.2025. The Ld. Predecessor of this
Court has specifically observed that the contention raised by the
Ld. counsel for applicant/ accused with respect to non-
compliance of Section 41 & 42 of NDPS Act is a matter of trial.
This Court is also in confirmity with the opinion given by the Ld.
Predecessor of this Court qua the aforesaid contention, therefore,
said contention is also rejected.
No other arguments have been raised by the Ld.
counsel for applicant/ accused to admit him on bail. Since
commercial quantity of Heroin was recovered at the instance of
the applicant/ accused, therefore, Section 37 of NDPS Act is
applicable. Applicant/ accused has failed to satisfy twin
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conditions as provided U/s 37 of NDPS Act. The allegations
against the applicant/ accused are serious in nature. It is well
settled that the nature and gravity of accusation, severity of the
punishment, danger of the accused absconding, reasonable
apprehension of the witnesses being influenced, prime facie case
against the accused, danger to the society etc. are factors which
have to be kept in mind while exercising powers for grant of bail.
In my considered opinion and owing to the given facts and
circumstances of the case, I am not inclined to grant bail to the
applicant/ accused at this stage. The precedents relied upon by
the learned counsel for applicant/ accused are respectfully
differentiated and are of, therefore, no help to him. Accordingly,
bail application of the applicant/ accused Javed Ali stands
dismissed.
The observations made on the merits of the case are
purely for the purposes of deciding the present bail application
and shall not be construed as expression upon the merits of the
case.
Copy of the order be given dasti to the IO as well as
to the Ld. Counsel for applicant/ accused and be communicated
to the applicant/ accused through Jail Superintendent for
information.
(Virender Singh)
Special Judge, NDPS,
Central,THC, Delhi/01.12.2025
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