Holding

Bail may be granted under Section 37 of the NDPS Act when the court is prima facie satisfied that the accused is not guilty and the prolonged detention violates the right to a speedy trial, subject to conditions under Section 436A of the CrPC.

Summary

The appellant, Mohd Muslim, was arrested in 2015 in connection with a seizure of 180 kg of ganja and charged under Sections 20, 25 and 29 of the NDPS Act. The prosecution relied on statements of co‑accused, the appellant’s confessional statement and bank‑transaction records, but failed to produce any direct evidence linking him to the narcotics. After more than seven years of incarceration, only 30 of 64 witnesses had been examined and two co‑accused had already been released on bail. The Supreme Court examined whether Section 37 of the NDPS Act, which imposes a non‑bailable presumption, could be overridden in view of the constitutional right to a speedy trial and Section 436A of the CrPC. It held that the court need only be satisfied on a prima‑facie basis that the accused is not guilty and that bail should not be denied merely because of procedural delay. Consequently, the Court allowed the appeal and ordered the appellant’s release on bail subject to conditions imposed by the trial court.

Issues considered

The applicability of Section 37 of the NDPS Act in granting bail to an accused who has been in custody for over seven years.
Whether the right to a speedy trial under Article 21 and Section 436A of the CrPC can override the non‑bailable presumption in Section 37.
Whether the prosecution evidence establishes a prima facie case of guilt sufficient to deny bail.

Legislation cited

Code of Criminal Procedure, 1973s. 309, s. 436, s. 436A, s. 437, s. 439
Indian Penal Code, 1860s. 120B
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20, s. 25, s. 29, s. 37
Prevention of Money Laundering Act, 2002
Terrorist and Disruptive Activities (Prevention) Acts. 20
Unlawful Activities (Prevention) Acts. 43(5)

Subjects

bailNDPS ActSection 37speedy trialArticle 21Section 436Aundertrial detentionright to liberty

Judgment

[2023] 3 S.C.R. 697 697

MOHD MUSLIM @ HUSSAIN A
v.
STATE (NCT OF DELHI)
(Criminal Appeal No(s). 943 of 2023)
MARCH 28, 2023 B
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37
– Code of Criminal Procedure, 1973 – s.436A – Appellant accused
of committing offences punishable under NDPS Act has been in
C
custody since 2015, if entitled to bail – Held: Recovery of ganja
was made from the four co-accused – Appellant was arrested at the
behest, and on the statement of one of the co-accused – Prosecution
relied on that statement, as well as the confessional statement of the
appellant – In addition, it also relied on the bank statements of one
of the co-accused who allegedly disclosed that money used to be D
transferred to the appellant – As against this, the prosecution has
not recovered anything else from the appellant – The allegation
that he is a mastermind is not backed by any evidence of extensive
dealing with narcotics, which would reasonably have surfaced –
Further, two co-accused persons have been enlarged on bail –
E
Appellant has been in custody for over 7 years and 4 months –
Progress of the trial has been at a snail’s pace wherein 30 witnesses
have been examined, and 34 more have to be examined – Grant of
bail on ground of undue delay in trial, cannot be said to be fettered
by s.37, given the imperative of s.436A which is applicable to
offences under the NDPS Act too – Thus, on facts, appellant enlarged F
on bail subject to such conditions as the trial court may impose –
Bail.
Bail – Offences under Special Acts – Duty of Courts –
Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 G
– Special conditions under – Interpretation of.
Words and Phrases – ‘Not guilty’ – Discussed – Bail.

H
697
698 SUPREME COURT REPORTS [2023] 3 S.C.R.

A Allowing the appeal, the Court
HELD: 1.1 The recovery of ganja was made on 28.09.2015,
from the four co-accused, including ‘NE’. The present appellant
was arrested at the behest, and on the statement of this ‘NE’.
The prosecution has relied on that statement, as well as the
B confessional statement of the present appellant; in addition, it
has relied on the bank statements of ‘VS’ @ ‘B’, who allegedly
disclosed that money used to be transferred to the appellant. As
against this, the prosecution has not recovered anything else from
the appellant; its allegation that he is a mastermind, is not backed
by any evidence of extensive dealing with narcotics, which would
C reasonably have surfaced. The prosecution has not shown
involvement of the appellant, in any other case. Furthermore, he
was apparently 23 years of age, at the time of his arrest. It is an
undisputed fact that two co-accused persons (who also, were not
present at the time of raid and from whom no contraband was
D recovered) - the accused (‘VS’ @ ‘B’) who allegedly transferred
money to the appellant’s account as payment for the ganja, and
the accused (‘NY’ @ ‘TP’) from whom the original insurance
papers and registration certificate of the car from which
contraband was seized, was recovered - have both been enlarged
on bail. The appellant has been in custody for over 7 years and 4
E months. The progress of the trial has been at a snail’s pace: 30
witnesses have been examined, whereas 34 more have to be
examined. [Para 17][709-E; 710-A-D]
1.2 The conditions which courts have to be cognizant of
are that there are reasonable grounds for believing that the
F
accused is “not guilty of such offence” and that he is not likely to
commit any offence while on bail. What is meant by “not guilty”
when all the evidence is not before the court? It can only be a
prima facie determination. That places the court’s discretion
within a very narrow margin. Given the mandate of the general
G law on bails (Sections 436, 437 and 439, CrPC) which classify
offences based on their gravity, and instruct that certain serious
crimes have to be dealt with differently while considering bail
applications, the additional condition that the court should be
satisfied that the accused (who is in law presumed to be innocent)
is not guilty, has to be interpreted reasonably. Further the
H
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 699

classification of offences under Special Acts (NDPS Act, etc.), A
which apply over and above the ordinary bail conditions required
to be assessed by courts, require that the court records its
satisfaction that the accused might not be guilty of the offence
and that upon release, they are not likely to commit any offence.
These two conditions have the effect of overshadowing other
B
conditions. In cases where bail is sought, the court assesses the
material on record such as the nature of the offence, likelihood
of the accused co-operating with the investigation, not fleeing
from justice: even in serious offences like murder, kidnapping,
rape, etc. On the other hand, the court in these cases under such
special Acts, have to address itself principally on two facts: likely C
guilt of the accused and the likelihood of them not committing
any offence upon release. This court has generally upheld such
conditions on the ground that liberty of such citizens have to - in
cases when accused of offences enacted under special laws – be
balanced against the public interest. A plain and literal
D
interpretation of the conditions under Section 37 (i.e., that Court
should be satisfied that the accused is not guilty and would not
commit any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and unsanctioned
preventive detention as well. Therefore, the only manner in which
such special conditions as enacted under Section 37 can be E
considered within constitutional parameters is where the court
is reasonably satisfied on a prima facie look at the material on
record (whenever the bail application is made) that the accused
is not guilty. Any other interpretation, would result in complete
denial of the bail to a person accused of offences such as those
F
enacted under Section 37 of the NDPS Act. The standard to be
considered therefore, is one, where the court would look at the
material in a broad manner, and reasonably see whether the
accused’s guilt may be proved. The satisfaction which courts are
expected to record, i.e., that the accused may not be guilty, is
only prima facie, based on a reasonable reading, which does not G
call for meticulous examination of the materials collected during
investigation. 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 436A which is applicable to offences under the NDPS
Act too. In the facts of this case, the appellant deserves to be
H
700 SUPREME COURT REPORTS [2023] 3 S.C.R.

A enlarged on bail. The appellant is directed to be enlarged on bail,
subject to such conditions as the trial court may impose. [Paras
18-20, 24][710-E-G; 711-A-H; 713-A]

Kartar Singh v. State of Punjab (1994) 3 SCC 569 :
[1994] 2 SCR 375 – followed.
B
Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) v. Union of India (1994) 6 SCC
731 : [1994] Supp. 4 SCR 386; Shaheen Welfare
Association v. Union of India (1996) 2 SCC 616 : [1996]
C 2 SCR 1123; Satender Kumar Antil v. Central Bureau
of Investigation (2022) 10 SCC 51; Union of India v.
K. A. Najeeb (2021) 3 SCC 713 : [2021] 2 SCR 443;
Vijay Madanlal Chaudhary v. Union of India 2022 SCC
Online SC 929:[2022] 6 SCR 382 – relied on.

D Hussainara Khatoon v. Home Secy., State of Bihar
(1980) 1 SCC 81 : [1979] 3 SCR 1276; Kadra
Pahadiya & Ors. v. State of Bihar (1981) 3 SCC 671;
Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC
225 : [1991] 3 Suppl. SCR 325; State of Madhya
Pradesh v. Kajad (2001) 7 SCC 673 : [2001] Supp. 2
E
SCR 617; Vaman Narain Ghiya v. State of Rajasthan
(2009) 2 SCC 281 : [2008] 17 SCR 369; A Convict
Prisoner v. State 1993 Cri LJ 3242 – referred to.

National Crime Records Bureau, Prison Statistics in
F India https://ncrb.gov.in/sites/default/files/PSI- 2021/
Exe cu t i v e _ n c r b_ Su m m a r y - 20 2 1 . p d f ; Do n a l d
Clemmer, The Prison Community (1968) Holt, Rinehart
& Winston, which is referred to in Tomasz Sobecki,
‘Donald Clemmer’s Concept of Prisonisation’,
available at: https://www.tkp.edu.pl/wp- content/
G uploads/2020/12/Sobecki_sklad.pdf (accessed on 23rd
March 2023) – referred to.

H
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 701

Case Law Reference A
[1979] 3 SCR 1276 referred to Para 2
[1991] 3 Suppl. SCR 325 referred to Para 3
[2001] 2 Suppl. SCR 617 referred to Para 11
[1994] 4 Suppl. SCR 386 relied on Para 12 B
[2008] 17 SCR 369 referred to Para 13
[1994] 2 SCR 375 followed Para 13
[1996] 2 SCR 1123 relied on Para 13
C
[2021] 2 SCR 443 relied on Para 14
[2022] 6 SCR 382 relied on Para 15
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
943 of 2023.
From the Judgment and Order dated 08.09.2022 of the High Court D
of Delhi at New Delhi in BA No. 2675 of 2022.
Ms. Tanya Agarwal, Mrs. Shubhangi Tuli, Advs. for the Appellant.
Vikramjit Banerjee, A.S.G., Shreekant Neelappa Terdal,
Ms. Nachiketa Joshi, Digvijay Dam, Sachin Sharma, Rajan Kr. Chourasia,
E
Ms. Shruti Agarwal, Ms. Janhvi Prakash, Kartik Dey, Advs. for the
Respondent.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. Special leave granted. With consent of counsel for parties, the F
appeal was heard finally.
2. Long back, in Hussainara Khatoon v. Home Secy., State of
Bihar1 this court had declared that the right to speedy trial of offenders
facing criminal charges is “implicit in the broad sweep and content of
Article 21 as interpreted by this Court”. Remarking that a valid G
procedure under Article 21 is one which contains a procedure that is
“reasonable, fair and just” it was held that:

1
[1979] 3 SCR 1276 : (1980) 1 SCC 81 H
702 SUPREME COURT REPORTS [2023] 3 S.C.R.

A “Now obviously procedure prescribed by law for depriving a
person of liberty cannot be “reasonable, fair or just” unless
that procedure ensures a speedy trial for determination of
the guilt of such person. No procedure which does not ensure
a reasonably quick trial can be regarded as “reasonable, fair
or just” and it would fall foul of Article 21. There can,
B
therefore, be no doubt that speedy trial, and by speedy trial
we mean reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and liberty
enshrined in Article 21. The question which would, however,
arise is as to what would be the consequence if a person
C accused of an offence is denied speedy trial and is sought to
be deprived of his liberty by imprisonment as a result of a
long delayed trial in violation of his fundamental right under
Article 21.”
3. These observations have resonated, time and again, in several
D judgments, such as Kadra Pahadiya & Ors. v. State of Bihar2 and
Abdul Rehman Antulay v. R.S. Nayak 3; in the latter the court re-
emphasized the right to speedy trial, and further held that an accused,
facing prolonged trial, has no option:
“The State or complainant prosecutes him. It is, thus, the
E obligation of the State or the complainant, as the case may
be, to proceed with the case with reasonable promptitude.
Particularly, in this country, where the large majority of
accused come from poorer and weaker sections of the society,
not versed in the ways of law, where they do not often get
competent legal advice, the application of the said rule is
F wholly inadvisable. Of course, in a given case, if an accused
demands speedy trial and yet he is not given one, may be a
relevant factor in his favour. But we cannot disentitle an
accused from complaining of infringement of his right to
speedy trial on the ground that he did not ask for or insist
G upon a speedy trial.”
4. These issues have pivotal meaning to the facts of this case.
The appellant complains that his application for bail ought not to have
been rejected by the High Court, in the present case, considering that he
2
(1981) 3 SCC 671
H 3
[1991] Supp. 3 SCR 325: (1992) 1 SCC 225
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 703
[S. RAVINDRA BHAT, J.]

has suffered incarceration for over 7 years and the criminal trial has A
hardly reached the half-way mark. The appellant is accused of committing
offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereafter ‘NDPS Act’). His
application under Section 439 read with Section 482 of the Criminal
Procedure Code (hereafter ‘CrPC’), seeking grant of regular bail, before
B
the Delhi High Court, was denied by the impugned judgment4. Some
other facts important to the decision in this case, are that at the time of
his arrest, the appellant was 23 years. He was not found in possession
of the narcotic drug; other co-accused were.
5. The prosecution alleges that on 28.09.2015, based on secret
information received by the police, a raid was conducted, leading to C
arrest of four accused persons - Nitesh Ekka, Sanjay Chauhan, Sharif
Khan, and Virender Shakiyar/Sakyabar @ Deepak, who were alleged
to be in possession of 180 kilograms of ganja. During investigation, the
accused Nitesh Ekka was taken to Chhattisgarh for identification of co-
accused persons. At his instance, the present appellant Mohd. Muslim D
was arrested on the intervening night of 03/04.10.2015. Pursuant to
further investigation, three other co-accused (Virender Singh @ Beerey,
Shantilal Tigga @ Guddu, and Nepal Yadav @ Tony Pahalwan) were
also arrested. It is the prosecution’s case that Virender Singh @ Beerey
would purchase ganja and make transfers to the bank accounts belonging
to Mohd. Muslim, Shantilal Tigga @ Guddu and Nitesh Ekka, and their E
friends and families, before further supplying the ganja to Nepal Yadav
@ Tony Pahalwan. On 29.02.2016, the chargesheet was filed under
Sections 20/ 25/ 29 of the NDPS Act and Section 120B IPC, and on
05.07.2016 the charges were framed against the appellant and other co-
accused. As per pleadings, two supplemental chargesheets were also F
filed on 01.08.2016 and 08.11.2017.
6. The appellant’s bail application was rejected by the district court5
based on the gravity of the offences alleged, severity of punishment, and
the appellant’s alleged role. It was noted that he had been in regular
contact with the other co-accused to commit the crime, and that material G
witnesses were yet to be examined.

4
Order dated 08.09.2022 in Bail Application No. 2675/2022.
5
Order dated 08.06.2022 in FIR No. 148/2015, passed by the ASJ & Special Judge
(NDPS), South East District, Saket Court, New Delhi. H
704 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 7. Aggrieved, the present appellant approached the High Court.
The impugned judgment records that the present accused was prima
facie in regular contact with other co-accused as indicated by the call
records, and that the main accused Virender Singh @ Beerey had
transferred money from his bank account to the appellant’s bank account,
several times. One of the witnesses, during trial, had also allegedly
B
mentioned that Rs. 50,000 was received from the present appellant. It
was held that there was a prima facie case against him, and no grounds
to rely on the exceptions of Section 37 of the NDPS Act; therefore,
application for regular bail was refused, with a direction to the trial court
to expedite the trial and conclude it within six months. Aggrieved, the
C appellant is now before this court, renewing his plea for grant of regular
bail.
8. Ms. Tanya Agarwal, learned counsel appearing on behalf of
the appellant, urged that the period of long incarceration suffered, entitled
the appellant to grant of bail. Further, 34 more witnesses were yet to be
D examined, with little or no progress to the trial since the High Court’s
direction to expedite the trial. It was also pointed out that main accused
Virender Singh @ Beerey and another co-accused Nepal Yadav, had
both already been granted bail by the High Court6. Counsel urged bail on
the ground of parity.
E 9. Mr. Vikramjit Banerjee, learned Additional Solicitor General of
India, appearing for the State, strongly opposed grant of bail, citing Section
37 of the NDPS Act. It was urged that the appellant was actively involved
in the commission of the offence – with call records and bank transactions
implicating him with the main accused Virender Singh @ Beerey. The
ASG submitted that such cases are deeply concerning, as the accused
F persons are said to be involved in a drug peddling network. The public
interest of protection against sale and use of illegal drugs, outweighed
the concerns regarding individual liberty of the accused, and justified
continued custody of the appellant. Provisions like Section 37 of the
NDPS Act have been upheld by this court, as necessary to ensure public
G order and to prevent recurrence of serious crimes like drug dealing. The
learned ASG also submitted that the role of the appellant, though he is a
co-accused is prominent, as he appears to be the mastermind behind the
supply and delivery of narcotic substances from Chhattisgarh.
6
Order dated 10.12.2018 in Bail Application No. 2188/2018, and order dated 26.07.2018
H in Bail Application No. 944/2018, respectively.
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 705
[S. RAVINDRA BHAT, J.]

Analysis and Conclusions A
10. Section 37 of the NDPS Act reads as follows:
“Offences to be cognizable and non-bailable—(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973—
B
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for a term of
imprisonment of five years or more under this Act shall be
released on bail or on his own bond unless— C
(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the
court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is D
not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b)
of sub-section (1) are in addition to the limitations under the
Code of Criminal Procedure, 1973 or any other law for the
time being in force, or granting of bail.” E
11. In this case, as it stands, the appellant has been in custody
since 03.10.2015, barring grant of interim bail from time to time, for
wedding ceremonies7 and to take care of his ailing mother8. It was
observed by this court, in State of Madhya Pradesh v. Kajad9 while
commenting on Section 37 of the NDPS Act, that a “liberal” approach F
should not be adopted:
“Negation of bail is the rule and its grant and exception under
sub clause (ii) of clause (b) of Section 37(1). For granting
the bail the court must, on the basis of the record produced
before it, be satisfied that there are reasonable grounds for G
believing that the accused is not guilty of the offences with

7
Order dated 03.05.2016 by the Special Judge; and Order dated 28.01.2022 by the
Special Judge.
8
Order dated 24.07.2020 in Bail Application No. 1859/2020.
9
[2001] Supp. 2 SCR 617: (2001) 7 SCC 673. H
706 SUPREME COURT REPORTS [2023] 3 S.C.R.

A which he is charged and further that he is not likely to commit
any offence while on bail. It has further to be noticed that the
conditions for granting the bail, specified in clause (b) of
sub-section (1) of Section 37 are in addition to the limitations
provided under the Code of Criminal Procedure or any other
law for the time being in force regulating the grant of bail.”
B
12. This court has to, therefore, consider the appellant’s claim for
bail, within the framework of the NDPS Act, especially Section 37. In
Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India 10, this court made certain crucial
observations, which have a bearing on the present case while dealing
C with denial of bail to those accused of offences under the NDPS Act:
“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
D 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
E 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 [(1994) 3 SCC 569].
Despite this provision, we have directed as above mainly at
F 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 A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release
on bail, which can be taken to be embedded in the right of
G 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
10
H [1994] Supp. 4 SCR 386: (1994) 6 SCC 731
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 707
[S. RAVINDRA BHAT, J.]

the personal liberty without ensuring speedy trial would also A
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
B
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, C
fairness and reasonableness in procedural matters.”
13. When provisions of law curtail the right of an accused to
secure bail, and correspondingly fetter judicial discretion (like Section 37
of the NDPS Act, in the present case), this court has upheld them for
conflating two competing values, i.e., the right of the accused to enjoy D
freedom, based on the presumption of innocence, and societal interest –
as observed in Vaman Narain Ghiya v. State of Rajasthan 11 (“the
concept of bail emerges from the conflict between the police power
to restrict liberty of a man who is alleged to have committed a crime,
and presumption of innocence in favour of the alleged criminal….”).
They are, at the same time, upheld on the condition that the trial is E
concluded expeditiously. The Constitution Bench in Kartar Singh v. State
of Punjab 12 made observations to this effect. In Shaheen Welfare
Association v. Union of India13 again, this court expressed the same
sentiment, namely that when stringent provisions are enacted, curtailing
the provisions of bail, and restricting judicial discretion, it is on the basis F
that investigation and trials would be concluded swiftly. The court said
that Parliamentary intervention is based on:
“a conscious decision has been taken by the legislature to
sacrifice to some extent, the personal liberty of an undertrial
accused for the sake of protecting the community and the G
nation against terrorist and disruptive activities or other
activities harmful to society, it is all the more necessary that
11
[2008] 17 SCR 369: (2009) 2 SCC 281
12
[1994] 2 SCR 375: (1994) 3 SCC 569
13
[1996] 2 SCR 1123: (1996) 2 SCC 616 H
708 SUPREME COURT REPORTS [2023] 3 S.C.R.

A investigation of such crimes is done efficiently and an
adequate number of Designated Courts are set up to bring to
book persons accused of such serious crimes. This is the only
way in which society can be protected against harmful
activities. This would also ensure that persons ultimately found
innocent are not unnecessarily kept in jail for long periods.”
B
14. In a recent decision, while considering bail under the Unlawful
Activities Act (Prevention) Act, 1967, this court in Union of India v. K.
A. Najeeb14 observed that:
“12. Even in the case of special legislations like the Terrorist
C 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),
(1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005)
11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCC
D 731 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
E protection of innocent civilians.”
The court concluded that statutory restrictions like Section 43-
D(5) of the UAPA, cannot fetter a constitutional court’s ability to grant
bail on ground of violation of fundamental rights.
15. Even in the judgment reported as Vijay Madanlal Chaudhary
F v. Union of India15 this court while considering bail conditions under
the Prevention of Money Laundering Act, 2002, held that:
“If the Parliament/Legislature provides for stringent provision
of no bail, unless the stringent conditions are fulfilled, it is
the bounden duty of the State to ensure that such trials get
G precedence and are concluded within a reasonable time, at
least before the accused undergoes detention for a period
extending up to one-half of the maximum period of
imprisonment specified for the concerned offence by law.”
14
[2021] 2 SCR 443: (2021) 3 SCC 713
15
H [2022] 6 SCR 382: 2022 SCC Online SC 929
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 709
[S. RAVINDRA BHAT, J.]

16. In the most recent decision, Satender Kumar Antil v. Central A
Bureau of Investigation16 prolonged incarceration and inordinate delay
engaged the attention of the court, which considered the correct approach
towards bail, with respect to several enactments, including Section 37
NDPS Act. The court expressed the opinion that Section 436A17 (which
requires inter alia the accused to be enlarged on bail if the trial is not
B
concluded within specified periods) of the Criminal Procedure Code,
1973 would apply:
“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 C
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 D
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.” E

17. The facts in this case reveal that the recovery of ganja was
made on 28.09.2015, from the four co-accused, including Nitesh Ekka.

16
(2022) 10 SCC 51
17
Section 436A provides as follows: F
“Where a person has, during the period of investigation, inquiry or trial under
this Code of an offence under any law (not being an offence for which the punishment of
death has been specified as one of the punishments under that law) undergone detention
for a period extending up to one-half of the maximum period of imprisonment specified
for that offence under that law, he shall be released by the Court on his personal bond
with or without sureties;
G
Provided that the Court may, after hearing the Public Prosecutor and for reasons
to be recorded by it in writing, order the continued detention of such person for a period
longer than one-half of the said period or release him on bail instead of the personal
bond with or without sureties;
Provided further that no such person shall in any case be detained during the
period of investigation inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that law.” H
710 SUPREME COURT REPORTS [2023] 3 S.C.R.

A The present appellant was arrested at the behest, and on the statement
of this Nitesh Ekka. The prosecution has relied on that statement, as
well as the confessional statement of the present appellant; in addition, it
has relied on the bank statements of Virender Singh @ Beerey, who
allegedly disclosed that money used to be transferred to the appellant.
As against this, the prosecution has not recovered anything else from
B
the appellant; its allegation that he is a mastermind, is not backed by any
evidence of extensive dealing with narcotics, which would reasonably
have surfaced. The prosecution has not shown involvement of the
appellant, in any other case. Furthermore, he was apparently 23 years
of age, at the time of his arrest. It is an undisputed fact that two co-
C accused persons (who also, were not present at the time of raid and
from whom no contraband was recovered) - the accused (Virender Singh
@ Beerey) who allegedly transferred money to the appellant’s account
as payment for the ganja, and the accused (Nepal Yadav @ Tony
Pahalwan) from whom the original insurance papers and registration
certificate of the car from which contraband was seized, was recovered 18
D
- have both been enlarged on bail. The appellant has been in custody for
over 7 years and 4 months. The progress of the trial has been at a snail’s
pace: 30 witnesses have been examined, whereas 34 more have to be
examined.
18. The conditions which courts have to be cognizant of are that
E 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. What is meant by “not guilty” when all the evidence is not before
the court? It can only be a prima facie determination. That places the
court’s discretion within a very narrow margin. Given the mandate of
F the general law on bails (Sections 436, 437 and 439, CrPC) which classify
offences based on their gravity, and instruct that certain serious crimes
have to be dealt with differently while considering bail applications, the
additional condition that the court should be satisfied that the accused
(who is in law presumed to be innocent) is not guilty, has to be interpreted
reasonably. Further the classification of offences under Special Acts
G (NDPS Act, etc.), which apply over and above the ordinary bail conditions
required to be assessed by courts, require that the court records its
satisfaction that the accused might not be guilty of the offence and that

18
As per the counter-affidavit dated 21.02.2023 filed by the respondent-state before
H this court.
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 711
[S. RAVINDRA BHAT, J.]

upon release, they are not likely to commit any offence. These two A
conditions have the effect of overshadowing other conditions. In cases
where bail is sought, the court assesses the material on record such as
the nature of the offence, likelihood of the accused co-operating with
the investigation, not fleeing from justice: even in serious offences like
murder, kidnapping, rape, etc. On the other hand, the court in these cases
B
under such special Acts, have to address itself principally on two facts:
likely guilt of the accused and the likelihood of them not committing any
offence upon release. This court has generally upheld such conditions
on the ground that liberty of such citizens have to - in cases when accused
of offences enacted under special laws – be balanced against the public
interest. C
19. A plain and literal interpretation of the conditions under Section
37 (i.e., that Court should be satisfied that the accused is not guilty and
would not commit any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and unsanctioned preventive
detention as well. Therefore, the only manner in which such special D
conditions as enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably satisfied on a
prima facie look at the material on record (whenever the bail application
is made) that the accused is not guilty. Any other interpretation, would
result in complete denial of the bail to a person accused of offences
such as those enacted under Section 37 of the NDPS Act. E
20. The standard to be considered therefore, is one, where the
court would look at the material in a broad manner, and reasonably see
whether the accused’s guilt may be proved. The judgments of this court
have, therefore, emphasized that the satisfaction which courts are
expected to record, i.e., that the accused may not be guilty, is only prima F
facie, based on a reasonable reading, which does not call for meticulous
examination of the materials collected during investigation (as held in
Union of India v. Rattan Malik19). 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 436A which is applicable to offences
under the NDPS Act too (ref. Satender Kumar Antil supra). Having G
regard to these factors the court is of the opinion that in the facts of this
case, the appellant deserves to be enlarged on bail.

19
(2009) 2 SCC 624 H
712 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 21. Before parting, it would be important to reflect that laws which
impose stringent conditions for grant of bail, may be necessary in public
interest; yet, if trials are not concluded in time, the injustice wrecked on
the individual is immeasurable. Jails are overcrowded and their living
conditions, more often than not, appalling. According to the Union Home
Ministry’s response to Parliament, the National Crime Records Bureau
B
had recorded that as on 31st December 2021, over 5,54,034 prisoners
were lodged in jails against total capacity of 4,25,069 lakhs in the country20.
Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates are at risk
of “prisonisation” a term described by the Kerala High Court in A Convict
C Prisoner v. State21 as”a radical transformation” whereby the prisoner:
“loses his identity. He is known by a number. He loses personal
possessions. He has no personal relationships. Psychological
problems result from loss of freedom, status, possessions,
dignity any autonomy of personal life. The inmate culture of
D prison turns out to be dreadful. The prisoner becomes hostile
by ordinary standards. Self-perception changes.”
23. There is a further danger of the prisoner turning to crime, “as
crime not only turns admirable, but the more professional the crime,
more honour is paid to the criminal”22 (also see Donald Clemmer’s
E ‘The Prison Community’ published in 194023). Incarceration has further
deleterious effects - where the accused belongs to the weakest economic
strata: immediate loss of livelihood, and in several cases, scattering of
families as well as loss of family bonds and alienation from society. The
courts therefore, have to be sensitive to these aspects (because in the
event of an acquittal, the loss to the accused is irreparable), and ensure
F that trials – especially in cases, where special laws enact stringent
provisions, are taken up and concluded speedily.

20
National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/
G default/files/PSI-2021/Executive_ncrb_Summary-2021.pdf
21
1993 Cri LJ 3242
22
Working Papers - Group on Prisons & Borstals - 1966 U.K.
23
Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is
referred to in Tomasz Sobecki, ‘Donald Clemmer’s Concept of Prisonisation’, available
at: https://www.tkp.edu.pl/wp-content/uploads/2020/12/Sobecki_sklad.pdf accessed
H on 23 rd March 2023).
MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI) 713
[S. RAVINDRA BHAT, J.]

24. For the above reasons, the appellant is directed to be enlarged A
on bail, subject to such conditions as the trial court may impose. The
appeal is allowed, in the above terms. No costs.

Divya Pandey Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)
B

C

D

E

F

G

H