1. RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent - State of Gujarat.

2. By way of present application under Section 439 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the applicant is seeking regular bail in connection with FIR being CR No.11210015200082 of 2020 registered with DCB Police Station, Surat for the offence under Sections 8(C), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").

3. Heard learned advocate for the applicant and learned APP for respondent - State of Gujarat.

4. Learned advocate for the applicant submitted that the applicant came to be arrested on 23 rd September 2020 and that the charge-sheet has already been filed. It was further submitted that nothing further remains to be recovered or discovered from the applicant. Learned advocate further submitted that the co- accused has already been released on bail. On the aforesaid grounds, it was requested that the present applicant may be enlarged on bail.

5. Per contra, learned APP vehemently opposed the present application on the ground that the applicant was found in conscious possession of mephedrone, which falls within the category of commercial quantity, and, therefore, the rigours of Section 37 of the NDPS Act are applicable. It was submitted that there is no delay on the part of the prosecution in conducting the trial. Learned APP further submitted that, after having been released on bail, the applicant remained absconding and had jumped interim bail. He could ultimately be traced near the Bihar-Nepal border and was arrested in the year 2023. It was further submitted that, if the applicant is released on bail, the possibility of his tampering with the evidence cannot be ruled out. It was also submitted that, considering the rigours of Section 37 of the NDPS Act, the applicant has failed to satisfy the statutory requirements for grant of bail. Learned APP further submitted that some of the other co-accused are also absconding, on account of which the trial against them has been separated. It was further submitted that the material witnesses have already been examined and that only 22 prosecution witnesses remain to be examined, which can be completed within a period of approximately three months. It was therefore submitted that the entire trial is likely to be concluded within four to five months and the judgment may thereafter be pronounced. Hence, there is no likelihood of any undue delay in conclusion of the trial. Learned APP further submitted that, out of the total prosecution witnesses, 56 witnesses have already been examined, therefore, requests that the present application be dismissed.

6. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.

7. Having heard the learned advocates for the respective parties and having gone through the record of the case, it appears that the present applicant was found in conscious possession of 1011.82 grams of mephedrone, valued at approximately Rs.1,01,18,200/-. After following the due procedure, the muddamal was seized and the present applicant was arrested. The investigation reveals that the co-accused were in contact with the present applicant. The price of MD drug was stated to be between Rs.1,300/- and Rs.1,500/- per gram. It is further alleged that the accused persons were using code words while indulging in drug-trafficking activities. The statements of the witnesses who were allegedly consuming psychotropic substances have also been recorded. The prosecution has collected the money trail as well as other corroborative pieces of evidence connecting the present applicant with the alleged offence.

8. Upon collection of sufficient material during the course of investigation, the present applicant came to be charge-sheeted and the charge-sheet was filed. The applicant was initially arrested in September 2020. It is submitted that, owing to the COVID-19 pandemic, the trial could not proceed at the expected pace. However, after the applicant was released on bail, he jumped bail and remained absconding. The charge-sheet was subsequently filed on 29th August 2023, which culminated in registration of NDPS Case No.68 of 2023.

9. At the first blush, the submission on behalf of the applicant that he has been in custody for approximately six years does not merit acceptance. The record indicates that the applicant was not continuously in custody during the entire period. He was released on bail and thereafter absconded and was subsequently apprehended pursuant to a warrant. Therefore, the period of incarceration cannot be considered in isolation without taking into account the applicant's conduct while on bail.

10. It is further borne out from the record that the prosecution has examined 56 witnesses. Some of the other co-accused have remained absconding, and, therefore, supplementary charge- sheets have been filed and separate trials have been ordered to proceed against them. In cases involving multiple accused, it is not uncommon for the trial to be delayed on account of one or more accused remaining absconding or adopting various means to obstruct or protract the proceedings. The fact that some co- accused have secured bail cannot, by itself, be a ground to release the present applicant when his individual conduct and antecedents are required to be considered.

11. It is also not a case where the applicant has been implicated solely on the basis of the statements of witnesses who had consumed the drugs. The material available on record prima facie indicates that the applicant played an active role in supplying the contraband and coordinating with the co-accused, thereby demonstrating his conscious involvement in the alleged offence.

12. Since the case involves commercial quantity of contraband, rigors of Section 37(1)(b) of the NDPS Act are attracted. Before granting bail, the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Both these conditions are mandatory. In the present case, having regard to the material collected during the investigation, the applicant's knowledge of the transaction, and his alleged role in supply of the contraband, this Court is not satisfied that the twin conditions prescribed under Section 37 are fulfilled. Therefore, this is not a fit case for exercising discretion in favour of the applicant. It is also not a case where the applicant has been implicated solely on the basis of statements of co-accused recorded under Section 67 of the NDPS Act. The material on record prima facie indicates that the applicant played an active role in supplying the contraband and coordinated with the co-accused, thereby demonstrating conscious involvement in the alleged offence. In this regard, reference may be made to the decisions of the Hon'ble Supreme Court in the cases of Union of India v. Vigin K. Vergese, reported in 2025 INSC 1316 and Union of India v. Namdev, reported in 2025 LiveLaw (SC) 109, wherein it has been observed that in cases involving commercial quantity of narcotic substances, grant of bail is an exception and refusal of bail is the rule. The Court must interpret the provisions of the NDPS Act in a manner that advances its object and purpose and not in a manner that frustrates them. Prima facie, the material on record indicates that the applicant was involved in an organized network engaged in drug trafficking. Consequently, no ground is made out for relaxing the mandatory requirements of Section 37 of the NDPS Act. Further, in view of Sections 29 and 37 of the NDPS Act, and having regard to the principles laid down by the Hon'ble Supreme Court in State of Punjab v. Balraj Singh @ Billa, reported in 2026 INSC 618, mere delay in trial cannot by itself be a ground for granting bail when the offence involves commercial quantity and the prima facie involvement of the accused is evident from the record.

13. Considering the rigours of Section 37 of the NDPS Act, compliance with the statutory requirements is mandatory while considering an application for bail in a case involving commercial quantity of contraband. In the present case, the contraband has been recovered from the conscious possession of the applicant. Therefore, the rigours of Section 37 of the NDPS Act would squarely apply. In this regard, reference may be made to the decision of the Hon'ble Supreme Court in State of Meghalaya v. Lalrintluanga Sailo & Anr., reported in 2024 SCC OnLine SC 1751.

14. The contention regarding parity with the co-accused also does not persuade this Court. The principle of parity is not to be applied mechanically. The role attributed to each accused, the nature of the material against him, the quantity recovered, his antecedents and his conduct are required to be considered. In the present case, the applicant is alleged to have been found in conscious possession of commercial quantity of mephedrone, whereas the orders granting bail to the co-accused are required to be examined in the light of the specific role and circumstances attributed to those accused. In this regard, reliance may be placed on the decisions of the Hon'ble Supreme Court in Tarun Kumar v. Enforcement Directorate, reported in 2023 SCC OnLine SC 1486, and Sagar v. State of U.P. & Anr., reported in 2025 INSC 1370, wherein the principle of parity has been considered in the context of the individual role and circumstances of the accused. Parity cannot be claimed as a matter of right where the role and circumstances of the present applicant are materially distinguishable from those of the co- accused.

15. The submission regarding delay in the conclusion of the trial also requires to be considered in the factual background of the present case. The prosecution has already examined 56 witnesses and, according to the learned APP, only 22 witnesses remain to be examined. It is submitted that the remaining evidence can be completed within approximately three months and that the entire trial is likely to be concluded within four to five months. In view of the substantial progress already made in the trial, this Court does not find that the prosecution is responsible for any undue or deliberate delay warranting exercise of discretion in favour of the applicant at this stage.

16. The antecedents and conduct of the present applicant are also relevant. It appears that the applicant has one past antecedent of similar nature and two other offences registered under the IPC. The existence of such antecedents, coupled with the applicant's previous conduct of jumping bail and remaining absconding, cannot be brushed aside while considering the second limb of Section 37, namely, whether there are reasonable grounds to believe that the applicant is unlikely to commit any offence while on bail.

17. In the present case, considering the alleged recovery of 1011.82 grams of mephedrone, which is a commercial quantity, the material collected during the course of investigation, the alleged conscious possession of the contraband, the material indicating the applicant's connection with the co-accused and the alleged drug-trafficking activity, this Court is not satisfied that there are reasonable grounds for believing that the applicant is not guilty of the alleged offence. Further, considering the applicant's antecedent of a similar nature, the other offences registered against him, and, more particularly, his conduct of jumping bail and remaining absconding before being apprehended pursuant to a warrant near the Bihar-Nepal border, this Court is also not satisfied that there are reasonable grounds to believe that he is unlikely to commit any offence while on bail. The present case is, therefore, not one where the applicant can claim parity with the co-accused as a matter of right. The individual role attributed to the present applicant, the commercial quantity allegedly recovered from his conscious possession, the applicability of Section 37, his antecedents and his conduct while on bail distinguish his case from that of the co-accused who have been enlarged on bail.

18. Moreover, other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.

19. The seriousness of cases under the NDPS Act have to be viewed like this that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society, that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Special provisions under the Act.

20. So far learned counsel for the applicant has submitted that the applicant is in jail since 23.09.2020 and therefore, on the ground of delay in trial, applicant may be enlarged on bail. In this regard, reference is required to be made on the decision of Hon'ble Supreme Court in the case of State of Punjab Vs. Sukhwinder Singh @ Gora, in 2026 INSC 411, wherein the Hon'ble Supreme Court held that the constitutional right to a speedy trial under Article 21 cannot unilaterally dilute or bypass the mandatory statutory twin conditions for bail under Section 37 of the NDPS Act, 1985.

21. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. in the case of Babua v. State of Orissa, Hon'ble Apex Court has been pleased to held that:

          "3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view."

          Further, in the present case, the applicant is found in illegal trafficking of mephedrone and therefore, considering the rigors of Section 37 of the NDPS Act and the law laid down by the Hon'ble Supreme Court in the case of Bhawani Singh vs. State of Rajasthan reported in 2022 SCC OnLine SC 1991 as well as in the case of State of Meghalaya vs. Lalrintluanga Sailo and Another reported in 2024 SCC OnLine SC 1751, State by the Inspector of Police Vs. B. Ramu, Union of India Vs. Namdeo Ashruba Nakade and Union of India Vs. Ajay Kumar Singh, the applicant is not entitled for bail.

22. In cases under the NDPS Act, where the rigours of Section 37 of the Act are applicable, coupled with the statutory presumption under Section 35 of the NDPS Act regarding culpable mental state, and the alleged contraband is of commercial quantity, the Court, while considering an application for bail, must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is unlikely to commit any offence while on bail. As held by the Hon'ble Supreme Court in Union of India v. Ram Samujh, (1999) 9 SCC 429, the Court must strictly circumscribe the parameters of Section 37 and bear in mind the object and legislative intent underlying the provision, including the legislative intent to curb the menace posed by illicit trafficking in narcotic drugs and psychotropic substances and its adverse impact on society. In this regard, reference may also be made to the three-Judge Bench judgment of the Hon'ble Supreme Court in NCB v. Mohit Agrawal, (2022) 18 SCC 374, as well as Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549. The Court is required to consider the twin conditions prescribed under Section 37, namely, whether there are reasonable grounds for believing that the accused is not guilty of the alleged offence and whether he is unlikely to commit any offence while on bail. In the aforesaid backdrop, the length of custody or the mere fact that the charge-sheet has been filed cannot, by itself, constitute a ground for grant of bail as a matter of right. Such circumstances may, at best, be taken into consideration as additional or persuasive factors, but they cannot substitute the mandatory satisfaction required under Section 37 of the NDPS Act.

23. At this stage, decision of the Hon'ble Supreme Court in the case of Ash Mohammad vs. Shiv Raj Singh alias Lalla Babu and Another reported in (2012) 9 SCC 446 is also required to be referred to wherein it has been held that the concept of liberty is not in the realm of absolutism but is a restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized.

25. Considering the nature and gravity of the allegations, the alleged recovery of 1011.82 grams of mephedrone, which is a commercial quantity coupled with similar nature of past antecedents, the material collected during the investigation, the applicant's alleged connection with the co-accused, and his antecedents, including his conduct of jumping temporary bail and remaining absconding until his apprehension pursuant to a warrant near the Bihar-Nepal border, trial got delayed, this Court is not satisfied that the twin conditions prescribed under Section 37 of the NDPS Act are fulfilled alongside flight risk of accused. This Court is not inclined to exercise its discretionary jurisdiction under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in favour of the applicant.

24. The present application, therefore, fails and is accordingly dismissed. Rule is discharged. However, learned trial Court is directed to expedite the trial at the earliest by conducting the trial on day to day basis, as the applicant is an under-trial prisoner. It is made clear that the observations made in the present order are tentative in nature.