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Judgment
This is a petition for bail in a case under the NDPS Act under Section 483 of the BNSS. The petitioner is the first accused in R.R. No.23 of 2023 (NCB F.No.48/1/10/2023-NCB/MDS) on the file of the respondent, the Narcotics Control Bureau, Chennai Zonal Unit, registered for offences under Section 8(c) read with Sections 20(b)(ii)(C), 27A, 28 and 29 of the NDPS Act, and now pending as C.C. No.652 of 2024 on the file of the learned Principal Special Judge, Special Court for EC and NDPS Act Cases, Chennai. The offences under Sections 20(b)(ii)(C) and 27A each carry rigorous imprisonment for not less than ten years, which may extend to twenty years. This is his third petition before this Court.
The case of the prosecution, briefly stated, is this. On 24.07.2023, on specific information, officers of the respondent intercepted a truck at the Karanodai Toll Plaza, Chennai, and recovered 432.700 kilograms of ganja concealed behind the Poclain machines it was carrying. The truck was driven by the petitioner, with the second accused as his helper, and both were arrested at the spot. The third to sixth accused were arrested in the course of the investigation as the persons who procured and financed the consignment.
The petitioner was arrested at the spot on 24.07.2023 and he has been in custody for over three years and two months. The final report has been taken on file as C.C. No.652 of 2024, and charges have not been framed. The third to sixth accused are on bail. The orders granting bail to three of them, in Crl.O.P. Nos.16517, 25507 and 28034 of 2024, rest on the footing that nothing was recovered from them, and the petition of the second accused was dismissed on 15.04.2025 because, unlike them, he was found with the contraband.When the petition was heard on 24.09.2026, I called for a report from the Special Court on the delay. The report dated 05.10.2026 states that the order of a coordinate Bench dated 15.04.2025 in Crl.O.P. No.2684 of 2025, which dismissed the petition of the second accused, directed the trial Court to conclude the trial expeditiously and gave him liberty to renew his petition if the trial was not completed within six months, was not in the records of the Special Court and was not brought to its notice by either side until a copy of the order of 24.09.2026 was received on 30.09.2026. It states further that the present Presiding Officer took charge on 12.08.2026; that on 14.08.2026, 28.08.2026 and 09.09.2026 one or more of the third to sixth accused, who are on bail, were absent; that non-bailable warrants were issued against the third to sixth accused on 09.09.2026; that the third and fourth accused surrendered on 23.09.2026 and the warrant against the fifth accused remains pending; and that on each of those dates the petitioner and the second accused were produced from custody. The Special Court reports that charges are ready.Even as on 21.10.2026, NBW is pending against A5, the case stood posted to 03.11.2026.
Learned counsel for the petitioner made these submissions:
[a] nothing was recovered from the petitioner, and he was implicated only on the statement of a co-accused;
[b] the grounds of arrest were not communicated to him as required by Section 47 of the BNSS; the respondent issued only an arrest memo, which is not the grounds of arrest, and reliance was placed on Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 : 2025 INSC 162, Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, Ashish Kakkar v. U.T. of Chandigarh, Criminal Appeal No.1518 of 2025, order dated 25.03.2025, and on a decision of the Kerala High Court in a batch of bail applications (Bail Application Nos.6366 of 2025 and connected cases), for the proposition that a breach of Article 22(1) of the Constitution is an independent ground for release even where the NDPS Act restricts bail;
[c] the second accused was granted bail in Crl.O.P. No.7908 of 2025 on that very ground, and the petitioner stands on the same footing;
[d] the petitioner has been in custody for over three years, and though the final report was taken on file in 2024, charges have not been framed, notwithstanding the direction of 15.04.2025.
The respondent has filed a counter affidavit and the petition is opposed on its lines. The learned Special Public Prosecutor submitted that the contraband was recovered from the truck driven by the petitioner; that the grounds of arrest were explained to the accused in a language known to them, the memos of arrest were served on and signed by them, and their relatives were informed; that the requirement of written grounds laid down in Mihir Rajesh Shah v. State of Maharashtra, (2026) 1 SCC 500 : 2025 INSC 1288 operates only from 06.11.2025 and does not assist an accused arrested in July 2023; that a coordinate Bench declined the same plea, raised late in cases of this agency, in Sundar Rao v. Union of India, Crl.O.P. No.3329 of 2026 and batch, dated 17.03.2026, 2026:MHC:1100; and that the quantity is commercial and the twin conditions in Section 37 of the Act are not satisfied.
I have considered the rival submissions and perused the material placed before me.
The first submission, however, does not accord with the record. The petitioner's own petition states, in paragraph 2, that the ganja was seized from him and the second accused while they were transporting it in the truck, and the counter affidavit says the same. The co-accused who are on bail were released because nothing was recovered from them; the second accused was refused bail because he was found with the contraband. The averment in paragraph 3 of the petition, that nothing was recovered from the petitioner and that he was implicated on the statement of a co-accused, is evidently drawn from the petitions of the other accused and is inapt to him. There is no parity with the co-accused on bail.
The petitioner was arrested in July 2023, well before 06.11.2025, the date from which the requirement of written grounds laid down in Mihir Rajesh Shah (cited supra) operates, as held in State of Meghalaya v. Sonam Raghuvanshi, 2026 SCC OnLine SC 1392. The test for his arrest is the one in Vihaan Kumar (cited supra): the grounds must be communicated effectively, in a language the arrested person understands, and the burden of proving compliance is on the officer who made the arrest. In Sonam Raghuvanshi (cited supra) the Supreme Court held, in paragraph 11, that
"There is a fundamental difference between non-service of grounds of arrest and non-furnishing of adequate reasons thereunder. While the first category might vitiate the arrest, in the second category, one has to see the prejudice caused to the accused", and, in paragraph 12, that
"when the accused person warranted a finding on merits on the earlier occasions, it is not open for him/her to go back and raise the plea on the issue pertaining to the grounds of arrest thereafter."
The petitioner's own case, in paragraphs 7 and 8 of the petition, is that the respondent issued "only Arrest Memo" and did not furnish the grounds on which he was arrested. His complaint, then, is not that nothing was served on him, but that what was served did not amount to grounds of arrest. That is a complaint of adequacy. The counter affidavit states that the memos of arrest were served on and signed by the accused and that the grounds were explained to them in a language known to them. Prejudice must therefore be shown, and none is shown. The petitioner was arrested at the spot, in the truck he was driving, and knew what he was arrested for. He has twice moved this Court for bail, and the petition does not say that this plea was taken on either occasion.
In a case of commercial quantity the right to a speedy trial "has to be read alongside, and not in displacement of, the mandate of Section 37", as held in State of Punjab v. Sukhwinder Singh @ Gora, (2026) 7 SCC 513 : 2026 INSC 411, paragraph 27. The approach to bail where prolonged incarceration is asserted under special statutes imposing restrictive conditions is now before a larger Bench of the Supreme Court in Tasleem Ahmed v. State (NCT of Delhi), SLP (Crl.) No.2867 of 2026, order dated 22.05.2026. The petitioner has been in custody for over three years and two months, and in all that time the case has not reached the framing of charges.
The orders relied on in this connection do not carry the petitioner further. In Iqbal Basha Urundadi v. Superintendent of Customs, SLP (Crl.) No.14128 of 2026, order dated 31.08.2026, the appellant had been in custody for more than four years, and an earlier order to conclude the trial within a stipulated period had not been complied with, for which he could not be faulted. In Balkishan v. State of Madhya Pradesh, 2024 SCC OnLine SC 5301, eight of twenty-five witnesses had been examined and there was no reasonable likelihood of the trial concluding at an early date; the order was made on its own facts. In Crl.O.P. No.23511 of 2026, dated 31.08.2026, this Court granted bail to an accused who had been in custody for over three years and three months after a time-bound direction given in his own case had not been complied with and the trial, once begun, had stalled in the chief-examination of a prosecution witness. Here the only time-bound direction was given in the petition of the second accused, and it never reached the Special Court. No direction has yet been given in the petitioner's own case. The answer to a trial that has not moved is to move the trial, and to leave the petitioner the liberty that follows if it does not move.
The learned Principal Special Judge, Special Court for EC and NDPS Act Cases, Chennai, shall frame charges in C.C. No.652 of 2024 within four weeks from the date of receipt of a copy of this order, without adjourning the case for that purpose except for reasons to be recorded. The absence of an accused who is on bail shall not by itself hold up the framing of charges against, and the trial of, the accused who are in custody, and the Special Court shall take the steps open to it in law to secure the presence of the absent accused or to proceed against those who are present. After charges are framed, the Special Court shall examine the witnesses on dates not more than fourteen days apart and shall make every endeavour to conclude the trial within six months. If the trial is not concluded within that period for reasons not attributable to the petitioner, he is at liberty to move afresh. The Superintendent of the prison shall ensure that the petitioner is produced before the Special Court on every hearing date, physically or through video conferencing.
In the result, this Criminal Original Petition is dismissed.