Pushbendra Singh vs The State

The petitioner is the third accused in Crime No.449 of 2024 registered by the R-3 Ashok Nagar Police Station, Chennai, for offences under Section 8(c) read with Sections 22(c) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was arrested and remanded to judicial custody on 01.12.2024 and has been in prison since. The final report has been taken on file as C.C.No.396 of 2025 by the Special Court for Essential Commodities and NDPS Act cases, Chennai. Charges are yet to be framed. He seeks bail.

According to the prosecution, on 01.12.2024 the Sub Inspector of Police attached to the respondent police station received information that a narcotic drug was being carried for sale near the junction of the 4th Avenue and the 100 Feet Road at Ashok Nagar. He went to the spot with his party and found three men standing there. On search, 11 grams of methamphetamine, two bottles of poppers and a bottle of sandal perfume were seized from the first accused Sunil @ Jayaprakash, 37 grams of methamphetamine and a sum of Rs.32,000/-from the second accused Victor Wade, and 11 grams of methamphetamine from the petitioner. The seizures were made under mahazar, the three were arrested at about 2.30 p.m., their statements were recorded and the first information report was registered at 6.30 p.m. The aggregate quantity is 59 grams, which is above the commercial quantity of 50 grams notified for methamphetamine under Entry 159 of Notification S.O.1055(E) dated 19.10.2001.

Learned counsel for the petitioner submitted that the quantity recovered from the petitioner is 11 grams, an intermediate quantity, and that the embargo in Section 37 of the Act therefore has no application to him. The seizures, he pointed out, were separate and were made from the person of each accused at different points of time. There is nothing on record beyond the confessional statements to connect the three men with one another; no call records, no bank transactions and not even a mobile phone were recovered; and a confession recorded by an officer under the Act is not evidence at all, in view of Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. He further submitted that the notice of arrest served on the petitioner discloses neither the grounds of arrest nor the quantity of the contraband, contrary to Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799; that the seizure mahazar carries the crime number although the first information report came to be registered only later that evening; and that the entry of Section 22(c) in the records has been overwritten. He relied on the orders of this Court in Crl.O.P.No.25771 of 2023 dated 07.02.2024 and in Crl.O.P.Nos.4755, 5416, 5436, 6234 and 8181 of 2025 dated 04.04.2025, and on an order said to have been passed on 27.07.2026 in Crl.O.P.No.13110 of 2026. He finally pressed the length of the petitioner's custody.

Learned Government Advocate (Criminal Side), on the counter affidavit of the Inspector of Police, R-3 Ashok Nagar Police Station, submitted that the three accused were not strangers to one another. The first accused has spoken to having come into contact with the second accused, a foreign national, through a mobile application, to having purchased the contraband from him, and to having sold a part of it to the petitioner, who in turn sold it locally. The prosecution asserts that it holds material to establish these continuing dealings. Investigation is complete, the chemical examination report was obtained on 14.03.2025, the final report was taken on file on 01.04.2025, and the case stands posted to 09.09.2026 for framing of charges, fifteen witnesses having been cited. He drew attention to the fact that this is the sixth bail petition filed by the petitioner and that the five earlier petitions were dismissed, the last of them on 07.07.2026.

I have considered the submissions on either side and perused the records.

It is convenient to take up first the question whether this petition can be entertained at all. The counter affidavit sets out the petitioner's earlier applications, and they are these:

Crl.O.P.No.791 of 2025, dismissed on 28.01.2025;

Crl.O.P.No.4233 of 2025, dismissed on 18.03.2025;

Crl.O.P.No.19432 of 2025, dismissed on 28.01.2026;

Crl.O.P.No.3962 of 2026, dismissed on 23.03.2026; and

Crl.O.P.No.12669 of 2026, dismissed on 07.07.2026.

The present petition, presented on 29.07.2026, is the sixth.

The order dated 07.07.2026 is on record. It was a common order in the petitions of the petitioner and of the first accused. The grounds urged before that Court were the very grounds urged before me now: that the seizures were separate, that the quantity attributable to each accused is only an intermediate quantity, and that the contraband was meant for personal consumption. Those grounds were considered and rejected, that Court holding that the aggregate of 59 grams falls within the commercial quantity, that the prosecution claimed to hold further material bearing on the dealings between the accused, and that the petitioner had not made out a case to overcome the rigour of Section 37 of the Act.

The rejection of a bail application does not operate as res judicata, and an accused is not shut out from moving the Court again. But liberty to move again is not liberty to re-argue. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2005) 2 SCC 42, the Supreme Court held that although principles analogous to res judicata do not apply to criminal proceedings, the Court hearing a later application is bound by judicial discipline to give due weight to the grounds on which bail was refused earlier; that issues canvassed earlier ought not ordinarily to be permitted to be reagitated on the same grounds, since that would lead to speculation, uncertainty and forum hunting; and that a subsequent application lies only where there is a change in the fact situation or in law which requires the earlier view to be interfered with, or where the earlier finding has become obsolete. That statement of the law was reiterated in Bhagwan Singh v. Dilip Kumar, 2023 INSC 761.

What, then, has changed since 07.07.2026? Two months have passed. Nothing else on this record is different. The order of 27.07.2026 relied on by learned counsel is an order of a coordinate Bench on the facts of another case; a copy of it has not been placed before me, and even taking the extract in the affidavit at its highest, a decision rendered on another record is not a change in the fact situation of this case. The orders of 07.02.2024 and 04.04.2025 are older still, and were available when the earlier petitions were argued.

The plea founded on Vihaan Kumar stands on no better footing. That judgment was delivered on 07.02.2025. It was therefore available to the petitioner when his third, fourth and fifth petitions were heard on 28.01.2026, 23.03.2026 and 07.07.2026. A ground that was available and was not urged does not become a fresh ground by being urged later. Quite apart from that, the Supreme Court in the same judgment took care to say that while non-compliance with Article 22(1) vitiates the arrest and the consequent orders of remand, it does not vitiate the investigation, the charge sheet or the trial. The petitioner has been in custody under successive orders of remand for more than twenty months and the final report has long since been taken on file. Whether the notice of arrest served on him met the constitutional requirement is a matter to be gone into on evidence at the trial.

The same must be said of the submission that the seizure mahazar bears the crime number though the first information report came to be registered later that evening, and that the section of law has been overwritten in the records. These are matters of proof, properly urged before the Special Court, which will have before it the officers who prepared those documents.

I turn to the period of custody, which is the ground on which this petition was pressed hardest. The petitioner was remanded on 01.12.2024 and has been in prison for one year and nine months. That is a substantial period and it has weighed with me. The law on the point is settled. In Union of India v. K.A. Najeeb, (2021) 3 SCC 713, the Supreme Court held that a statutory restriction on bail does not oust the power of a constitutional court, and that the rigour of such a provision melts down where there is no likelihood of the trial being completed within a reasonable time and the period already undergone exceeds a substantial part of the prescribed sentence. In Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, it was held that the grant of bail on the ground of undue delay in trial is not fettered by Section 37 of the NDPS Act. The same view was taken in Rabi Prakash v. State of Odisha, in the order dated 13.07.2023 in S.L.P.(Crl.) No.4169 of 2023, and in Ankur Chaudhary v. State of Madhya Pradesh, in the order dated 28.05.2024 in S.L.P.(Crl.) No.4648 of 2024.

Those decisions, however, rest on incarceration that had gone well beyond anything the progress of the trial could justify. The accused in Mohd. Muslim case, had been in custody for over seven years with less than half the witnesses examined; in Rabi Prakash case, for about three and a half years; in Ankur Chaudhary case, for over two years, with no prospect of the trial concluding soon. The petitioner's custody of one year and nine months is not yet of that order, and it is a long way short of the outer limit indicated by Section 479 of the BNSS, for an offence punishable under Section 22(c) of the Act. It is also relevant that when the fifth petition was heard, it was submitted for the prosecution that the accused had engaged no counsel before the Special Court and that the progress of the case was suffering on that account. Delay which an accused has himself contributed to cannot be converted into a ground for his release.

As to the stage of the proceedings, the investigation is complete. The chemical examination report was received on 14.03.2025, the final report was filed and taken on file on 01.04.2025, and fifteen witnesses have been cited. The trial has not begun. Charges are yet to be framed and the case now stands posted to 09.09.2026 for that purpose. That nearly seventeen months should have passed between the taking of the final report on file and the framing of charges is not a state of affairs this Court can view with equanimity, and I propose to give directions in that behalf. But the answer to a trial that has not moved is to move the trial, not to release an accused whose case for release rests on that very delay.

There is a further matter which I should mention, though I do not decide it. Whether the petitioner can be charged with the aid of Section 29 of the Act, and whether quantities seized separately from three men can be aggregated so as to make out possession of a commercial quantity, is a question of substance. It is precisely the question that falls for decision by the Special Court on 09.09.2026, when it takes up the framing of charges, and it would not be right for me to answer it in advance of that Court. I need only record that the Supreme Court has held in Nadeem Ahamed v. State of West Bengal, 2025 INSC 993, that contraband recovered from separate individuals cannot be clubbed together in the absence of positive proof to support the charge of conspiracy. The Special Court will apply its mind to the material before it and decide. If the charge that is framed against the petitioner is confined to possession of an intermediate quantity, Section 37 of the Act will not stand in his way, and he will be free to move afresh.

One circumstance disclosed by the papers also deserves to be noticed. The contraband was seized on 01.12.2024. It was produced before the Special Court only on 28.01.2025 in A.No.49 of 2025, and the sample reached the Forensic Sciences Department at Mylapore on 03.02.2025, the report following on 14.03.2025. The interval between the seizure and the production is not explained on this record. I say nothing on its effect, which is a matter for the Special Court at the trial, and I leave the question entirely open.

For these reasons, the petitioner has made out no ground for a departure from the view taken on 07.07.2026, and this Criminal Original Petition is dismissed. There will, however, be the following directions:

The Registry shall communicate a copy of this order to the Special Court for Essential Commodities and NDPS Act cases, Chennai, forthwith.