1. Heard.
2. By this application, the applicant is seeking bail in connection with Crime No. 1086/2025 registered with Police Station Katol, Dist. Nagpur Rural for the offences punishable under Sections 8(c), 20(b)(ii)(c), 22, 25, 27(a), 29 of the Narcotic Drugs and Psychotropic Substances (“NDPS”) Act, 1985.
3. The prosecution story in short is that after receiving the information and obtaining the requisite permissions, the authorities arrived at the residence of one Ramesh Gajbhiye, at that time, there were three persons present namely Sachin Bhagwat, Chagan Pritam Charpe and Samir Vijayrao Raut. Upon entering the room, officials found few bags in which 34 packets of suspected ganja were kept. On inquiry, it was confirmed that the packets contained ganja. Total ganja weighing 33.600 kg was seized from the spot and three accused were arrested. Based on this information, the first information report was lodged.
4. The learned counsel for the applicant has raised sole ground of contravention of Article 22(1) of the Constitution of India. He submits that the grounds of arrest which were communicated to the applicant those have not been informed to him in a language which he understands but have been informed in Marathi language. The applicant was taken into custody from State of Orissa of which he is a permanent resident where he runs a hotel business. Being a permanent resident of State of Orissa he is not aware of Marathi language. Since the grounds of arrest were communicated in Marathi language, he was not able to understand the same and accordingly he has relied on the judgment of the Supreme Court in the case of Mihir Rajesh Shah Vs. State of Maharashtra and anr., (2026) 1 SCC 500. Therefore, a prayer is made to release the applicant on bail on the sole ground of violation of Article 22(1) of the Constitution of India.
5. On the other hand, the learned APP concedes to this fact that the grounds of arrest have been communicated/informed to the applicant in Marathi language. However, he submitted that the grounds of arrest were also explained in Hindi to him which is sufficient compliance of Mihir Shah (supra). The applicant is raising a hyper-technical ground for releasing him on bail in such a serious matter. He submits that the applicant is involved in the recovery of more than 33 kg of ganja and the applicant is the supplier of the said contraband from the State of Orissa. The bank statements of the applicant show that the accused persons have deposited huge amount for procurement of contraband which was supplied by the applicant on receiving the money. As the quantity involved in the crime is more than 33 kgs being a commercial quantity therefore rigour of Section 37 of the NDPS Act would come into play. He further submits that though the applicant was taken into custody from State of Orissa, however he was arrested from Katol in State of Maharashtra. Therefore, considering the material placed on record and rigour of Section 37 of the NDPS Act, the applicant does not deserve to be enlarged on bail.
6. I have considered the rival submission. I have gone through the papers of investigation. Admittedly, it appears from the communication dated 30/11/2025 that the reasons and grounds of arrest have been written in Marathi language. However, there is nothing on record to show that the applicant is having knowledge of Marathi and further, the said letter was explained to the applicant in the language known to him i.e. Oriya. Under such circumstances, it would be useful to refer to the observations of the Supreme Court in the case of Mihir Shah (supra) specifically paragraph 53, 54 and 55 which read as under:-
“53. The mode of communicating the grounds of arrest must be such that it effectively serves the intended purpose as envisioned under the Constitution of India which is to enable the arrested person to get legal counsel, oppose the remand and effectively defend himself by exercising his rights and safeguards as provided in law. The grounds of arrest must be provided to the arrestee in such a manner that sufficient knowledge of facts constituting grounds is imparted and communicated to the arrested person effectively in a language which he/she understands. The mode of communication ought to be such that it must achieve the intended purpose of the constitutional safeguard. The objective of the constitutional mandate would not be fulfilled by mere reading out the grounds to the arrested person, such an approach would be antithesis to the purpose of Article 22(1).
54. There is no harm in providing the grounds of arrest in writing in the language the arrestee understands, this approach would not only fulfill the true intent of the constitutional mandate but will also be beneficial for the investigating agency to prove that the grounds of arrest were informed to the arrestee when a challenge is made to the arrest on the plea of non-furnishing of the grounds of arrest.
55. This Court is of the opinion that to achieve the intended objective of the constitutional mandate of Article 22(1) of the Constitution of India, the grounds of arrest must be informed to the arrested person in each and every case without exception and the mode of the communication of such grounds must be in writing in the language he understands.”
The Supreme Court in clear terms has held that the purpose behind providing the grounds of arrest in the language known to the applicant/accused is to enable the arrested person to get legal counsel, oppose the remand and effectively defend himself by exercising his rights and safeguard as provided in law. It is further held that the grounds of arrest must be communicated to the arrested person effectively in a language which he understands. The mode of communication ought to be such that it must achieve the intended purpose of the constitutional safeguards. Therefore, the Supreme Court has mandated that if a person does not know the language in which he was informed about the grounds of arrest, then the very purpose of incorporating Article 22(1) of the Constitution of India would be rendered otiose. It is further observed by the Supreme Court that to achieve the intended objective of the constitutional mandate of Article 22(1) of the Constitution of India, the grounds of arrest must be informed to the arrested person in each and every case without exception and the mode of communication of such grounds must be in writing in the language he understands.
7. So far as the present case is concerned, admittedly the applicant was arrested by the Investigating Agency. It is not in dispute that the applicant is the permanent resident of Orissa. He was taken into custody from the State of Orissa and the applicant is running the business of hotel in the State of Orissa. From the undisputed fact that the applicant is from Orissa, it follows that he cannot be expected to understand the Marathi language. Therefore, the only conclusion that can be drawn is that the Investigating Agency ought to have informed him of the grounds of arrest in a language known to him. By not doing so, the procedural safeguards enshrined under Article 22(1) of the Constitution of India have been violated.
8. It would also be useful to refer to the judgment of the Constitution Bench of the Supreme Court in case of Harikisan Vs. State of Maharashtra, 1962 SCC Online SC 117, wherein while dealing with Article 22(5) of the Constitution of India, it was held that the right of a detainee to be made aware of the grounds of arrest, the same should be furnished in a language which he can understand and in a script which he can read. Admittedly, in the present case the grounds provided by the Investigating Officer to the applicant is in Marathi language which neither the applicant can understand nor read. It is further to be noted that there is nothing on records to show that the said grounds were translated / communicated in the language known to the applicant. Therefore, undoubtedly there is clear infringement of constitutional safeguard provided under Article 22(1) of the Constitution of India.
9. Now let us examine whether rigor of Section 37 of NDPS Act would apply when the arrest itself is illegal and merits of the case are not considered. So as to decide the controversy in issue, it is necessary to categorize the bail applications and to consider the parameters applicable for their adjudication. Broadly, bail applications may be classified into two categories: (1) applications for bail on the merits of the case, and (2) applications for bail premised on violation of constitutional safeguards. Each of these categories admits of a further sub-classification: (1) (a) applications for bail on merits under special statutes, and (2)(a) applications for bail arising from infringement of constitutional guarantees vis a vis special statutes.
1. Applications for bail on the merits of the case
The parameters for adjudication of bail applications simpliciter on the merits of the case have long been settled by the Apex Court, and are as follows:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail. [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ]
1(a) Applications for bail on merits under special statutes,
For adjudication of bail applications under special statutes, the parameters settled by the Apex Court for bail on merits must be applied in conjunction with the additional statutory embargoes. Special enactments such as the Terrorism and Disruptive Activities (Prevention) Act (TADA), the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), the Prevention of Money Laundering Act, 2002 (PMLA), and the Narcotic Drugs and Psychotropic Substances Act (NDPS) impose stricter conditions for the grant of bail. Being special statutes, they override the general provisions of law. Consequently, the grant of bail under these enactments requires not only compliance with the settled parameters but also adherence to the rigours prescribed by the respective statute.
2. Applications for bail premised on violation of constitutional safeguards.
The term violation of procedural safeguard as provided in the Constitution encompasses infringement of fundamental rights of the accused which may include right to speedy trial, non-communication of grounds of arrest, non-production of accused within 24 hours before the Magistrate from the time of the arrest, etc. If there is violation of the same then fundamental right being inherent right of the accused, the applications without being considered on merits ought to be adjudicated. For example in the cases of delay in trial, period of incarceration and cause of delay have to be considered and gravity of offence is irrelevant [Arvind Dham v Directorate of Enforcement, SLP (Crl.) No 15748/2025, Sahil Manoj Machare Versus State of Maharashtra, SLP (Crl.) No. 7502/2026 and Vaibhav Singh Verus State of Uttar Pradesh, SLP (Crl.) 7416/2026]. The Apex Court has time and again given precedence to the fundamental rights of the accused though they are not absolute.
2(a). Applications for bail arising from infringement of constitutional guarantees vis a vis special statutes.
Though there are additional embargoes under special statutes then also the Apex Court has time and again released the accused on bail if there is violation of constitutional safeguards.
The three judges bench in the case of Union of India versus K. A. Najeeb, (2021) 3 SCC 713 while granting bail on the ground of delay in trial has held in paragraph nos. 12 and 17 as under:
“12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”
10. The purpose of incorporating the categories which are summarized above is with an objective to show that all these categories operate on different parameters. Every category will have to be considered based on the parameters which are laid down for the said categories. For example, so far as category No.1 is concerned i.e. application for bail on merits, under the said category, the following can be considered i.e. merits of the case, if the case is under a Special Statute, then the embargo provided under the said Statute with further addition of violation of constitutional safeguards. But, so far as the other category which is mentioned i.e. applications for bail premised on violation of constitutional safeguards/procedural safeguards/ fundamental rights guaranteed under Part III of the Constitution of India will have to be dealt with independently and exclusively on separate parameters. Therefore, if the matter for grant of bail is on the basis of merits vis-a-vis other considerations like long incarceration and inordinate delay and rigours of Special Statute barring bail, the same can be considered, however when bail is being considered only on the ground of violation of the Part III of the Constitution of India, in that case, merits or the rigours of the Special Statutes or the gravity of the offence, howsoever serious crime is, are irrelevant factors.
11. In the present case we are dealing with category 2(a) i.e. applications for bail arising from infringement of constitutional guarantees vis a vis Section 37 of NDPS Act particularly when the arrest itself is illegal. In cases governed by the rigours of Section 37 of the NDPS Act, bail may be granted only upon satisfaction of the twin conditions: (i) that there are reasonable grounds to believe the accused is not guilty of the alleged offence, and (ii) that the accused is not likely to commit any offence while on bail.
However, when there is violation of procedural safeguards guaranteed by the Constitution of India then rigours of Section 37 would not apply. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India[Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731 : 1995 SCC (Cri) 39 : 1994 Supp (4) SCR 386], the Apex Court made certain crucial observations in paragraph no. 15 which are as under:
“15. … On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v.State of Punjab[Kartar Singhv. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899 : (1994) 2 SCR 375] . Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in Abdul Rehman Antulay v. R.S. Nayak release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.”
In the matter of Satender Kumar Antil v. CBI [Satender Kumar Antil v. CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1] on the ground of prolonged incarceration and inordinate delay the Apex Court has dealt with Section 37 of the NDPS Act., in paragraph 86 as under:
“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.”
Similarly, the observations of the Supreme Court in the matter of Mohd. Muslim versus State (NCT of Delhi), (2023) 18 SCC 166, are relevant wherein it has been held 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 436-A which is applicable to offences under the NDPS Act too”
Even in Ankur Chaudhary v State of MP [SLP (Crl.) No. 4848/2024] it has been held 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”.
It is also necessary to discuss the decision of the Supreme Court in the matter of State of Punjab Vs. Sukhwinder Singh @ Gora, 2026 SCC OnLine SC 671, wherein it is held that even if there is infringement of right to speedy trial still rigours of Section 37 NDPS Act would apply. I am conscious of the above decision, however, it would be necessary to consider even the landmark judgment delivered by the Three Judges Bench of the Supreme Court in K.A Najeeb (supra) which considered the statutory restrictions like Section 43-D(5) of the UAPA. The Supreme Court has categorically held that, “Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution.” It is further observed that “the rigours of such provisions will melt down when there is no likelihood of trial being completed within a reasonable time”. Therefore, the Supreme Court in K.A. Najeeb (supra) has unequivocally stated that even if there are statutory restrictions and there is violation of fundamental rights, under such circumstances the statutory rigours would not be applicable. It is further to be noted that the Supreme Court in cases of Satender Kumar Antil, Ankur Chaudhary, Mohd. Muslim (supra) has considered the rigours of Section 37 of the NDPS Act and held that paramount consideration would be Article 21 of the Constitution of India and not rigours of Section 37 of the NDPS Act. In identical situation and time and again the Supreme Court has laid down the law that when there is a conflict between rigours of Special Statutes and violation of procedural safeguards and fundamental rights, in that situation, it is always the fundamental rights and the procedural safeguards provided under the Constitution of India which would prevail over rigours of Special Statutes. Even in K.A. Najeeb (supra), the Supreme Court has reiterated the law of precedent and stated that a Three Judges Bench judgment would be binding on two Judges Bench so also, earlier decisions of a coordinate Bench would be binding on the subsequent coordinate Bench and the same cannot be diluted.
12. I am also aware of the fact that the issue of delay in trial is not being considered in the present case. however, in the matter of Pankaj Bansal v. Union of India, (2024) 7 SCC 576 and Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, the Apex Court had declared the arrest as illegal though the offence was punishable under PMLA and UAPA respectively. It was held that even under special statues mandatory requirement of Right to life and personal liberty being the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India cannot be allowed to be interfered with except with the authority of law. Therefore, same analogy ought to be applied to NDPS Act being a special statue. Further, in Mihir Rajesh Shah (supra), the Apex Court has opined that, “This Court has made it explicit that the constitutional obligation under Article 22 is not statute-specific and it is grounded in fundamental right of life and personal liberty under Article 21 of the Constitution of India, therefore making it applicable to all offences including those under the Penal Code, 1860 (now BNS 2023)” The Delhi High Court very recently delivered a judgment on the exact point i.e. application of Section 37 qua illegal arrest in the case of Pahalman Budha Magar Vs. State NCT of Delhi, [Bail Application No.4034/2025 decided on 21/01/2026], wherein it is held as under:-
“15. Amongst all the grounds for bail raised by the applicant, the primary issue rests qua the non-supply of the grounds of arrest. Recently, the Hon'ble Supreme Court in the case of Mihir Rajesh Shah (supra), after analyzing Pankaj Bansal (supra), Prabir Purkayastha (supra) and Vihaan Kumar (supra), which also deals with special statues, has established a clear position of law qua the aforesaid issue by holding that Article 22(1) of the Constitution is a substantive constitutional safeguard, not a procedural formality as its purpose is to enable the arrested person to effectively defend himself by securing legal assistance, opposing remand, and exercising available rights. The grounds of arrest must be communicated clearly, with sufficient factual detail, in a language understood by the arrestee for serving the purpose of Article 22(1) of the Constitution and merely reading out the grounds of arrest is inadequate, since an arrested person may not be in a mental state to comprehend or retain what is orally conveyed. The relevant directions are reproduced herein as under:-
"56. In conclusion, it is held that:
i) The constitutional mandate of informing the arrestee the grounds of arrest is mandatory in all offences under all statutes including offences under Penal Code, 1860 (now BNS 2023);
ii) The grounds of arrest must be communicated in writing to the arrestee in the language he/she understands;
iii) In case(s) where, the arresting officer/person is unable to communicate the grounds of arrest in writing on or soon after arrest, it be so done orally. The said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the magistrate.
iv) In case of non-compliance of the above, the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free."
18. No doubt, while granting bail in a case under Section 37 of the NDPS Act, this Court must take due note of the twin conditions elucidated hereinabove, however, the same must be balanced with the fundamental guarantee of an accused being provided the grounds of arrest as per Article 22(1) of the Constitution. Section 37 of the NDPS Act, and/ or the other factors for granting bail to an accused, in such a scenario, cannot eclipse/override Article 22 (1) of the Constitution. A balance has, thus, to be drawn. Also, in light of the directions passed by the Hon'ble Supreme Court in Mihir Rajesh Shah (supra) which affirms the view rendered in Pankaj Bansal (supra) and Prabir Purkayastha (supra), the grant of bail in cases involving commercial quantity on the basis of non-supply of grounds of arrest is not barred by Section 37 of the NDPS Act and once it is admitted that no grounds of arrest were given at the time of the arrest to an accused, the said arrest and the subsequent remand becomes vitiated.”
13. It is trite law that Bail is the Rule and Jail is the exception. Under such circumstances, it leaves no doubt in my mind that the applicant was not aware of the Marathi language therefore, the arrest of the applicant being illegal is vitiated and rigour of Section 37 of NDPS Act would not apply to the present case. Since the arrest itself is illegal, the applicant cannot be kept behind bars. Therefore, I am inclined to grant bail by imposing stringent conditions, hence the following order:-
ORDER
(i) Criminal application is allowed and disposed of.
(ii) The applicant/accused Shibraj (Shivraj) @ Rahul S/o Rankadhar Mallik be released on bail in connection with Crime No. 1086/2025 registered with Police Station Katol, Nagpur Rural for the offences punishable under Sections 8(c), 20(b)(ii)(c), 22, 25, 27(a), 29 of the NDPS Act on his furnishing P.R. Bond of Rs. 1,00,000/- with two solvent sureties in the like amount. [One local surety from Nagpur District and one surety from District Balangir (Orissa)
(iii) The accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, as also shall not tamper with the evidence.
(iv) The accused shall provide his residential address and cell number to the concerned Police Station and shall not change his place of residence without prior intimation to the concerned Investigating Officer.
(v) The applicant/accused shall attend each and every date of trial regularly. If he fails to attend the trial for two consecutive dates or fails to comply with the aforesaid conditions, his default would entail the State to ask for cancellation of bail.
