IN THE HON’BLE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL) NO. OF 2022
[ORDER XXI RULE 3(1)(a)]
[Under Article 136 of the Constitution of India]
(Arising out of the final judgement & order dated 11.01.2022 passed by
the Hon’ble High Court of Jharkhand at Ranchi in B.A. No. 14085 of
2021)

IN THE MATTER OF: -

THE STATE OF JHARKHAND …
PETITIONER

VERSUS

OSAID MIYAN …
RESPONDENT

Along with

I.A. NO. OF 2022:- Application for Exemption from

filing Official Translation.

I.A. NO. OF 2022:- Application for Exemption from

filing Certified Copy.

PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)
 ADVOCATE-ON-RECORD FOR THE PETITIONER
ANANDO MUKHERJEE
INDEX

Sr. Particulars of Documents Page No. of part to which Remark

No it belongs
.
(i) (ii) (iii) (iv) (v)
1. Synopsis and List of Dates.
2. Memo of Parties.
3. Impugned Judgement & Order dated
11.01.2022 passed by the Hon’ble
High Court of Jharkhand at Ranchi in
B.A. No. 14085 of 2021.
4. Special Leave Petition with Affidavit.
5. Appendix Sections: -
Narcotic Drugs and Psychotropic
Substances Act, 1985
Section 37
6. ANNEXURE P-1

7. I.A. NO. OF 2022

Application for seeking exemption
from filing Official Translation.
8. I.A. NO. OF 2022
Application for seeking exemption
from filing Certified Copy of the
Impugned Judgement.
 SYNOPSIS

That, the instant Special Leave Petition is being preferred by the

Petitioner herein against the Impugned Final Judgement and Order dated
11.01.2022 passed by the Hon’ble High Court of Jharkhand at Ranchi in
B.A. No. 14085 of 2021 whereby the Hon’ble High Court has
mechanically and erroneously granted Bail to the Respondent Accused in
connection with Dasamfall P.S. Case No. 07 of 2021 registered under
Sections 17, 18, 21 and 22 of the NDPS Act, 1985. It is submitted that the
Hon’ble High Court in the impugned judgement has released the
Respondent Accused who had been found in possession of 117 kg. of
Opium mixed Doda Powder [114.5 kg. in excess of the prescribed
commercial quantity] vide a non-speaking order which has merely
recorded the submissions of the Counsels and provided no reasons
whatsoever for enlarging the Respondent Accused on bail and fails to
muster the conditions U/S 37 of the NDPS Act, 1985 which is sacrosanct
for grant of bail and as such the Impugned Order is contrary to the well-
established principles of this Hon’ble Court. Furthermore, the Hon’ble
High Court has gravely erred as the indictments against the Respondent
herein are grave and serious and there are substantial material on record
to prima-facie show that the Respondent Accused is guilty of the same.

Brief facts that are relevant for the proper adjudication of the instant
Petition are set out as under: -
(i) That on 10.03.2021, the informant; SI Prayag Das, Officer-in-
charge, Dashamfall P.S. upon getting information about opium
selling taking place behind Basan Hotel in village Dami in
 Jamshedpur, Ranchi constituted a raiding team. The Raiding Team
upon reaching the said location saw the four accused persons
including the Respondent herein. The Accused persons upon seeing
the Police tried to run away, and the Raiding Team managed to
apprehend two accused persons who were carrying bags. The
Apprehended Accused persons identified themselves as Pahan
Munda and Osaid Miyan; the Respondent herein, upon a search a
total of 2kg of Opium mixed Doda Poweder was recovered from
the instance of the two accused persons; 1.250kg from the
Respondent herein, and another 750gm from the instance of the
other accused. The Co-Accused; Pahan Munda further disclosed
the names of the other Co-Accused persons who managed to
escape as; Dibua Munda from whom he had bought the said
Opium, and Minhaz Miyan who along with Respondent herein had
come to purchase the said Opium. It was further disclosed by the
co-accused; Pahan Munda that he was engaged in the sale of Doda
Powder that he used to get from grinding the Doda at Utkramit
Primary School. Pursuant to the disclosure statement a subsequent
recovery of 115kg of Opium mixed Doda Powder in 7 plastic sacks
along with a grinder machine, stabilizer etc. was done from the said
school and seizure list was prepared accordingly.

(ii) The Respondent along with the co-accused Pahan Munda were
apprehended by the Police, and an FIR was registered against them
being Dashamfall P.S. Case No. 07 of 2021 dated 10.03.2021,
under Section(s) 17, 18, 21 and 22 of the NDPS Act, 1985 and
thereafter, the Accused persons were charge-sheeted vide Charge-
 Sheet No. 18 of 2021 dated 31.08.2021 for the said offences. The
Ld. Court below vide its order dated 10.09.2021 upon a careful
examination observed that the entire material on record adequately
showed the commission of an offence and was pleased to take
cognizance of the same. Thereafter charges were framed by the Ld.
Court Below vide its order dated 02.02.2022 under Section(s)
17(b), 18(c), 21(c) and 22(c) of the NDPS, Act, 1985.

(iii) The Respondent herein preferred a Bail Application before the

Hon’ble High Court of Jharkhand at Ranchi being B.A. No. 14085
of 2021 wherein, the Hon’ble High Court erroneously granted Bail
to the Respondent Accused vide a cryptic order, in complete
abeyance to the well settled principles laid down by this Hon’ble
Court.

It is respectfully submitted that the Impugned judgement is ex-facie

untenable, in as much as it does not consider the following critical legal
aspects: -

A. That the Impugned Order is a Non-Speaking Order which fails to

explain the basis for grant of Bail.

i. It is submitted that the Hon’ble High Court vide the Impugned

Order has enlarged the Respondent on Bail by way of cryptic
observations and without assigning any cogent reasoning for the
grant of bail, and the same is being reproduced below: -

“In view of the submissions made and considering the materials

available on record this bail application is allowed.”
ii. It is submitted that this Hon’ble Court in Mahipal v. Rajesh Kumar
@ Polia & Anr. (2020) 2 SCC 118 has categorically deplored the
practice of the High Court releasing on bail by only recording the
contention of the Counsel and merely stating “in view of the
abovementioned circumstances” without providing the actual
reasons or going through the evidence, and the same is being
reproduced below for the convenience of this Hon’ble Court: -

12. “At the stage of assessing whether a case is fit for the
grant of bail, the court is not required to enter into a
detailed analysis of the evidence on record to establish
beyond reasonable doubt the commission of the crime by the
accused. That is a matter for trial. However, the Court is
required to examine whether there is a prima facie or
reasonable ground to believe that the accused had
committed the offence and on a balance of the
considerations involved, the continued custody of the
accused subserves the purpose of the criminal justice
system. Where bail has been granted by a lower court, an
appellate court must be slow to interfere and ought to be
guided by the principles set out for the exercise of the power
to set aside bail.”

“25. Merely recording “having perused the record” and

“on the facts and circumstances of the case” does not
subserve the purpose of a reasoned judicial order. It is a
fundamental premise of open justice, to which our judicial
system is committed, that factors which have weighed in the
mind of the Judge in the rejection or the grant of bail are
recorded in the order passed. Open justice is premised on
the notion that justice should not only be done, but should
manifestly and undoubtedly be seen to be done. The duty of
Judges to give reasoned decisions lies at the heart of this
commitment. Questions of the grant of bail concern both
liberty of individuals undergoing criminal prosecution as
 well as the interests of the criminal justice system in
ensuring that those who commit crimes are not afforded the
opportunity to obstruct justice. Judges are duty-bound to
explain the basis on which they have arrived at a
conclusion.”

iii. It is submitted that; it was incumbent upon the High Court to state
the reasons for which it had released the Respondent Accused on
Bail despite there being sufficient material on record to prima-
facie establish the guilt of the Respondent Accused.

iv. However, the Hon’ble High Court failed to do so; as the only
reason provided by it in the impugned order for granting bail is on
account of the submissions made by the Ld. Counsel of the
Respondent which does not muster the test of law as laid down by
this Hon’ble Court for grant of bail.

v. It is thus submitted that; the Impugned Judgment is ex-facie illegal

and untenable in the eyes of law on the ground of being a Non-
Speaking and Non-Reasoned Order, and as such it ought to be set
aside on this ground alone.

B. That the Impugned Order fails to meet the criteria laid down for
grant of Bail under Section 37 of the NDPS Act, 1985.

i. It is submitted that the Hon’ble High Court in its impugned

judgement failed to observe the mandate of Section 37 of the
NDPS Act, 1985 while enlarging the Respondent Accused on Bail.
ii. In the instant case, 1.25kg of Opium has been recovered from the
Respondent Accused, and 750g of Opium from the Co-Accused.
Furthermore, 150kg of Doda Powder (i.e., 100kg in excess of the
prescribed commercial quantity of 50kg.) has also been recovered
pursuant to the disclosure statement of the accused persons.

iii. Since, the prescribed commercial quantity for Doda (Poppy-Straw)

is 50kg, the Accused persons including the Respondent herein are
said to be in possession of commercial quantity of Doda (Poppy-
Straw) and as such the rigors of Section 37 of the NDPS Act, 1985
is attracted to the instant case.

iv. For offences of and above the commercial quantity, the Hon’ble
Courts have the power to grant bail only as per the criteria laid
down under Section 37 which mandates the satisfaction of the
Courts as to the existence of reasonable grounds to believe that the
Accused person(s) is not guilty of the offence and is not likely to
commit any offence while on bail.

v. It is submitted that this Hon’ble Court in State of Kerala v. Rajesh

& Ors. (2020) 12 SCC 122 while determining the scope of grant of
bail under Section 37 of the NDPS Act, 1985 had expounded that
the term “reasonable grounds” used in the Section requires that
there must be something more than prima facie evidence that the
Accused is not guilty of the offence with following observations
being reproduced below for the ready reference of this Hon’ble
Court: -
 “19. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 CrPC, but is also subject to the
limitation placed by Section 37 which commences with non-
obstante clause. The operative part of the said section is in
the negative form prescribing the enlargement of bail to any
person accused of commission of an offence under the Act,
unless twin conditions are satisfied. The first condition is
that the prosecution must be given an opportunity to oppose
the application; and the second, is that the court must be
satisfied that there are reasonable grounds for believing that
he is not guilty of such offence. If either of these two
conditions is not satisfied, the ban for granting bail
operates.

20. The expression “reasonable grounds” means something

more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty
of the alleged offence. The reasonable belief contemplated in
the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to have
completely overlooked the underlying object of Section 37
that in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail under
the NDPS Act is indeed uncalled for.

21. We may further like to observe that the learned Single

Judge has failed to record a finding mandated under Section
37 of the NDPS Act which is a sine qua non for granting bail
to the accused under the NDPS Act”

vi. This Hon’ble Court in Union of India v. Saurabh Chatterji (2006)

9 SCC 759 and a catena of other judgements has explicitly iterated
that grant of bail in offences of commercial quantities without any
 observations in regards to the satisfaction of the requirements
under Section 37 of the NDPS Act, 1985 is not sustainable in law
with the following observation: -

“3. The respondent was charged under Sections 8/21 of the

NDPS Act. By the impugned order he was released on bail on
the ground that he has been in jail for 15 months. There was no
whisper about the provision of Section 37 of the Act. In this
case the provision of Section 37 of the Act has been completely
given a go-by by the High Court which is not sustainable in
law.”

vii. It is submitted that the Hon’ble High Court in the impugned order
records no reasonable grounds for believing that the Respondent is
not guilty of the offence or that he is not likely to commit any
offence while on bail. The entire order under challenge fails to
make the observation or indication of any fact and circumstances
which would show that the Respondent Accused is not guilty of the
alleged offence.

viii. The Hon’ble High Court in the Impugned Judgement merely

reproduced the contentions of the Counsel and has failed to place
reliance on any evidence on record whilst granting bail and as such
mere reproduction of the submissions can in no way absolve the
mandate of Section 37 of the Act.

C. That, the Hon’ble High Court failed to appreciate the fact there is
likelihood of the Respondent herein misusing the liberty of Bail.
i. It is further submitted that the limitations to grant of bail under
Section 37 of the Act are in addition to the limitations under the
Code of Criminal Procedure, 1973. However, the Hon’ble High
Court vide its Impugned Order not only failed to satisfy the
conditions under Section 37 of the Act, but also failed to muster
the criteria for granting bail under the Cr.P.C.

ii. This Hon’ble Court in Prashant Kumar Sarkar v. Ashish

Chaterjee (2010) 14 SCC 496 had laid down the parameters to
be borne in mind by the Courts while exercising its
discretionary power for grant of bail with the following
observations: -

“9. [...] It is trite that this Court does not, normally,

interfere with an order passed by the High Court granting
or rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are: (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 [...]”

12. It is manifest that if the High Court does not advert to

these relevant considerations and mechanically grants bail,
 the said order would suffer from the vice of non-application
of mind, rendering it to be illegal [...]”

iii. The Hon’ble High Court failed to take into consideration the
severity and gravity of the charges against the Respondent
Accused, and the likelihood of the Respondent misusing the bail
to abscond in view of the fact that the other two co-accused
persons namely Dibua Munda and Minhaz Miyan who managed
to escape have still not been caught and as such in these
circumstances the Hon’ble High Court ought not to have
granted bail to the Respondent Accused.

That the discretion of the Hon’ble High Court to grant bail has been
exercised without the due application of mind and in contravention of the
directions of this Hon’ble Court, and as such the order is liable to be set
aside. That the Hon’ble High Court completely failed to provide a finding
under Section 37 of the NDPS Act, 1985. That the impugned order passed
by the Hon’ble High Court is a non-speaking order and the Hon’ble High
Court has not at all considered the relevant factors and circumstances
while exercising its discretion, therefore this is a fit case to quash and set
aside the Impugned Order enlarging the Respondent Accused on bail.

Hence, the instant Special Leave Petition.

LIST OF DATES

DATE PARTICULARS
10.03.2021 The Informant; SI Prayag Das, Officer-in-
Charge, Dashamfall P.S. received information
about an opium selling taking place behind Basan
Hotel in village Dami situated in Jamshedpur,
Ranchi. A raiding team was thereafter constituted,
upon reaching the said location, the four accused
persons including the Respondent herein seeing
the Raiding Team approaching started running
away. The raiding team managed to apprehend
two accused persons who were carrying bags who
identified themselves as Pahan Munda and Osaid
Miyan; the Respondent herein.

Upon searching; Opium mixed Doda

Powder weighing 1.250kg was recovered from the
Respondent herein and 0.750kg from the other
Co-Accused i.e., a total quantity of 2kg was
recovered from the instance of the accused
persons.

Co-Accused Pahan Munda disclosed the

names of the other co-accused persons who
managed to escape as; one Dibua Munda from
whom he had bought the opium, and Minhaz
Miyan who along with the Respondent Accused
had come to purchase the said opium. He further
disclosed his involvement in sale of Doda Powder
which he used to make from grinding Doda at
Utkramit Primary School. Pursuant to the
disclosure statement 115kg of Opium mixed Doda
Powder in 7 plastic sacks along with a grinder
machine, stabilizer etc. was recovered from the
said school and seizure list was prepared
accordingly.

The Respondent along with the Co-accused

Pahan Munda were arrested by the Police, and an
FIR was registered against them being Dashamfall
 P.S. Case No. 07 of 2021 under Section(s) 17, 18,
21 and 22 of the NDPS Act, 1985.

11.03.2021 & Intimation Petition was filed by A.S.I.

12.03.2021 Dashamfall P.S. before the Ld. Spl Judge, Ranchi
informing about the arrest of the Respondent and
the Co-Accused Pahan Munda in connection with
Dashamfall P.S. Case No. 07 of 2021 under
Section(s) 17, 18, 21 and 22 of the NDPS Act,
1985.

Vide the order dated 12.03.2021 of the Ld.

Spl. Judge, Ranchi Respondent Accused along
with Co-Accused; Pahan Munda were taken into
judicial custody.

31.08.2021 Charge-sheet being Charge-Sheet No. 18 of 2021

filed against the Respondent Accused along with
Co-Accused; Pahan Munda under Section(s) 17,
18, 21 and 22 of the NDPS Act, 1985.

10.09.2021 Ld. Spl. Judge upon perusing the F.I.R., Charge-

Sheet, Seizure List, Self-Statement of the
Informant and the Confessional Statement of the
Accused persons and other relevant material took
Cognizance under Section(s) 17(b), 18(c), 21(c)
and 22(c) of the NDPS Act, 1985.

11.01.2022 The Respondent Accused preferred a Bail

Application before the Hon’ble High Court being
B.A. No. 14085 of 2021 wherein the Hon’ble high
Court vide its order erroneously granted bail to
the Respondent herein.

- Hence the instant Special Leave Petition.

 THROUGH
ANANDO MUKHERJEE
ADVOCATE-ON-RECORD
I-13 Lower Ground Floor,
Lajpat Nagar III,
New Delhi 110024.
DATED:
 IN THE HON’BLE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CRL) NO. OF 2022

MEMO OF PARTIES

IN THE MATTER OF: -

S. Hon’ble Hon’ble
No High Court Supreme Court
.
1. The State of Jharkhand Opposite Petitioner
Party
VERSUS
2. Osaid Miyan Petitioner Respondent

TO,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION OF JUDGES OF
THE HON’BLE SUPREME COURT OF
INDIA

THE HUMBLE PETITION OF

THE PETIONER ABOVE-NAMED

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDIA FOR SPECIAL LEAVE TO APPEAL AGAINST THE
ORDER DATED 11.01.2022 PASSED BY THE HON’BLE HIGH
COURT OF JHARKHAND AT RANCHI IN B.A. NO. 14085 OF
2021

MOST RESPECTFULLY SHOWETH: -

1. The Petitioner is constrained to prefer the instant Special Leave

Petition to assail the Impugned final Judgement and Order dated
11.01.2022 passed by the Hon’ble High Court of Jharkhand at Ranchi
in B.A. No. 14085 of 2021 whereby and whereunder the Hon’ble High
Court had erroneously granted Bail to the Respondent, accused U/S(s)
17(b), 18(c), 21(c) and 22(c) of the NDPS Act, 1985 in Dashamfall
P.S. Case No. 07 of 2021.

2. QUESTIONS OF LAW
The following questions of law arise for consideration by this Hon’ble
Court in the present Special Leave Petition:

I. WHETHER, the Hon’ble High Court was right in releasing the

Respondent Accused from whom 117 kg. of Opium mixed
Doda Powder had been recovered which is patently much more
than the prescribed commercial quantity of 2.5 kg. of Opium
and preparations containing opium?

II. WHETHER, the Hon’ble High Court complied with the

provision of Section 37 of the NDPS Act while granting bail to
the Respondent Accused?
III. WHETHER, the Hon’ble High Court was right to enlarge the
Respondent-Accused on Bail without adverting to the
mandatory condition of Section 37 of the NDPS Act, 1985
which requires the satisfaction of the Courts as to the existence
of reasonable grounds to believe that the Accused is not guilty
of the offence?

IV. WHETHER, the failure of the Hon’ble High Court to record

any observations qua the conditions under Section 37 of the
NDPS Act, 1985 contravenes the decision of this Hon’ble Court
in Union of India v. Saurabh Chatterji (2006) 9 SCC 759 and a
catena of other judgements which explicitly states that grant of
bail in offences of commercial quantities without any
observations in regards to the satisfaction of the requirements
under Section 37 is not sustainable in law?

V. WHETHER, the Hon’ble High Court failed to appreciate the

decision of this Hon’ble Court in State of Kerala and Ors. v.
Rajesh and Ors. (2020) 12 SCC 122 which categorically laid
down that the conditions prescribed under Section 37 of the
NDPS Act, 1985 is sine qua non for granting Bail to the
Accused under the Act?

VI. WHETHER, it was incumbent upon the Hon’ble high Court to

explicitly state the reasons for enlarging the Respondent-
Accused?
VII. WHETHER, the Hon’ble High Court is said to have exercised
its discretion of granting bail to the Respondent Accused
judiciously?

VIII. WHETHER, the Hon’ble Court’s sole observation “In view of

the submissions made and considering the materials available
on record this bail application is allowed.” is in contravention
of the decision of this Hon’ble Court in Mahipal v. Rajesh
Kumar @ Polia & Anr. (2020) 2 SCC 118 which had deplored
the practice of High Courts granting bail by only recording the
contention of the Counsels and merely stating “in view of the
abovementioned circumstances” without providing the actual
reasons or going through the evidence?

IX. WHETHER, the Hon’ble High Court’s impugned order is a

non-speaking and a non-reasoned order and said to be in direct
contravention of the principles laid down in Kumer Singh v.
State of Rajasthan (2021) SCC OnLine SC 511?

X. WHETHER, the Hon’ble High Court has mechanically granted

bail to the Respondent Accused without adverting to the
relevant considerations in terms of the decision of this Hon’ble
Court in Prasanta Kumar Sarkar v. Ashis Chaterjee and Ors.
(2010) 14 SCC 496 and therefore said to suffer from non-
application of mind and as such liable to be set aside?

XI. WHETHER, the Hon’ble High Court failed to appreciate the

Respondent Accused’s affiliation with the Co-Accused Pahan
 Munda, and thereby failed to ascribe due weightage to the Co-
Accused’s admission with regard to his engagement in selling
Opium mixed Doda Powder?

XII. WHETHER, failed to take into consideration the severity and

gravity of the charges against the Respondent Accused, and the
likelihood of the Respondent misusing the bail to abscond in
view of the fact that the other two co-accused persons namely
Dibua Munda and Minhaz Miyan who managed to escape have
still not been caught and as such in these circumstances the
Hon’ble High Court ought not to have granted bail to the
Respondent Accused?

XIII. WHETHER, the Hon’ble High Court is said to have exercised

its discretion of granting bail judiciously and cautiously?

3. DECLARATION IN TERMS OF RULE 2(2):

The Petitioner states that no other petition seeking leave to appeal has
been filed by it against the final impugned judgement and order dated
11.01.2022 passed by the Hon’ble High Court of Jharkhand at Ranchi in
B.A. No. 14085 of 2021.

4. DECLARATION IN TERMS OF RULE (4):

The Annexures P- to P produced along with the Special Leave Petition
are true copies of the pleadings / documents which formed part of the
records of the case in the Court below against whose order the leave to
appeal is sought for in this Petition.
5. GROUNDS:
Special Leave to Appeal is being sought on the following grounds among
others which are being urged independent and without prejudice to each
other: -

A. BECAUSE, the Hon’ble High Court failed to appreciate the fact

that 117 kg. of Opium mixed Doda Powder had been recovered
from the possession of the Respondent Accused and the Co-
Accused Pahan Munda which is 114.5 kg. in excess of the
prescribed Commercial Quantity of just 2.5 kg. of Opium and
preparations containing opium.

B. BECAUSE, the Hon’ble High Court failed to appreciate the

affiliation of the Respondent Accused with the Co-Accused; Pahan
Munda and as such failed to ascribe due weightage to the
admission made by the Co-Accused in regards to his engagement
in the trade of Doda Powder, and the machinery / equipment used
for the procurement of Doda Powder recovered from the disclosure
of the Co-Accused.

C. BECAUSE, the Hon’ble High Court has released the Respondent

Accused on bail vide a non-speaking and a non-reasoned order
which is completely contrary to the well settled principles of law,
and liable to set aside on this ground alone.

D. BECAUSE, the Hon’ble High Court enlarged the Respondent

Accused on Bail solely on the observation; ““In view of the
submissions made and considering the materials available on
record this bail application is allowed.” which is in contravention
of the decision of this Hon’ble Court in Mahipal v. Rajesh Kumar
@ Polia & Anr. (2020) 2 SCC 118 which had deplored the practice
of High Courts granting bail by only recording the contention of
the Counsels and merely stating “in view of the abovementioned
circumstances” without providing the actual reasons or going
through the evidence with the following observations reproduced
below for the convenance of this Hon’ble Court: -

12. “At the stage of assessing whether a case is fit for the
grant of bail, the court is not required to enter into a
detailed analysis of the evidence on record to establish
beyond reasonable doubt the commission of the crime by the
accused. That is a matter for trial. However, the Court is
required to examine whether there is a prima facie or
reasonable ground to believe that the accused had
committed the offence and on a balance of the
considerations involved, the continued custody of the
accused subserves the purpose of the criminal justice
system. Where bail has been granted by a lower court, an
appellate court must be slow to interfere and ought to be
guided by the principles set out for the exercise of the power
to set aside bail.”

“25. Merely recording “having perused the record” and

“on the facts and circumstances of the case” does not
subserve the purpose of a reasoned judicial order. It is a
fundamental premise of open justice, to which our judicial
system is committed, that factors which have weighed in the
mind of the Judge in the rejection or the grant of bail are
recorded in the order passed. Open justice is premised on
the notion that justice should not only be done, but should
manifestly and undoubtedly be seen to be done. The duty of
Judges to give reasoned decisions lies at the heart of this
commitment. Questions of the grant of bail concern both
liberty of individuals undergoing criminal prosecution as
 well as the interests of the criminal justice system in
ensuring that those who commit crimes are not afforded the
opportunity to obstruct justice. Judges are duty-bound to
explain the basis on which they have arrived at a
conclusion.”

In view of the above; the Impugned Order is said to be in complete

abeyance of the above settled position as it has merely recorded the
contentions submitted by the Counsels and failed to provide any
reasoning whatsoever that had led the Hon’ble High Court to grant
bail to the Respondent Accused.

E. BECAUSE, the impugned order passed by the Hon’ble High Court

is in teeth of the decision of this Hon’ble Court in Kumer Singh v.
State of Rajasthan (2021) SCC OnLine SC 511 wherein this
Hon’ble Court had made the following relevant observations being
reproduced below for the ready reference of this Hon’ble Court: -

“22. This Court disapproved such an order of grant of bail

by observing that the High Court has not considered
material available to the determination of whether the
accused were to be enlarged on bail. This court also further
observed that it is a sound exercise of judicial discipline for
an order granting or rejecting bail to record the reasons
which have weighed with the court for the exercise of its
discretionary power.

25. Applying the law laid down by this Court in the

aforesaid decisions on grant of bail, to the facts of the case
on hand; the impugned orders passed by the High Court
releasing the accused on bail cannot be sustained. Except
narrating the submissions made by Learned Counsel
appearing on behalf of the accused and the public
prosecutor and the complainant there is no independent
application of mind by the High Court and as such no
 reasons whatsoever have been assigned by the High Court
releasing the accused on bail”

It is crystal clear from above that recording of reasons that weighed

the Court towards a decision is the genesis of sound exercise of
judicial discretion, the failure of the Hon’ble High Court to provide
any reasons whatsoever is tantamount failure to soundly exercise
its judicial discretion and as such cannot be sustained.

F. BECAUSE, the Hon’ble High Court failed to advert with the

mandatory condition of Section 37 of the NDPS Act, 1985 which
requires the satisfaction of the Courts as to the existence of
reasonable grounds to believe that the Accused is not guilty of the
offence. It is submitted that in the Impugned Order, there is nothing
to even remotely suggest or indicate the existence of a fact or
circumstance that would show that the Respondent Accused is not
guilty of the offence, and as such the impugned order is bad in law.

G. BECAUSE, the Hon’ble High Court failed to comply with the

mandatory conditions of Section 37 of the NDPS Act, 1985 for
grant of Bail which is complete abeyance of the settled position by
this Hon’ble Court in State of Kerala and Ors. v. Rajesh and Ors.
(2020) 12 SCC 122 which categorically laid down that the
conditions prescribed under Section 37 of the NDPS Act, 1985 is
sine qua non for granting Bail to the Accused under the Act with
the following observations being reproduced below for the
convenience of this Hon’ble Court: -
 “19. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 CrPC, but is also subject to the
limitation placed by Section 37 which commences with non-
obstante clause. The operative part of the said section is in
the negative form prescribing the enlargement of bail to any
person accused of commission of an offence under the Act,
unless twin conditions are satisfied. The first condition is
that the prosecution must be given an opportunity to oppose
the application; and the second, is that the court must be
satisfied that there are reasonable grounds for believing that
he is not guilty of such offence. If either of these two
conditions is not satisfied, the ban for granting bail
operates.

20. The expression “reasonable grounds” means something

more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty
of the alleged offence. The reasonable belief contemplated in
the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to have
completely overlooked the underlying object of Section 37
that in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail under
the NDPS Act is indeed uncalled for.

21. We may further like to observe that the learned Single

Judge has failed to record a finding mandated under Section
37 of the NDPS Act which is a sine qua non for granting bail
to the accused under the NDPS Act”

In the impugned order, not only is there an absence of any

reasonable ground that would indicate that the Respondent
Accused is not guilty of the offence, but on the contrary the entire
material on record, the facts and circumstances, the admission of
 the Co-Accused, Pahan Munda along with the recoveries made
from the Accused Persons prima-facie shows that the Respondent
Accused is guilty of the offence and such ought not to have been
granted bailed by the Hon’ble High Court.

H. BECAUSE, the Hon’ble High Court failed to provide any finding

or observations as mandated under Section 37 of the NDPS Act,
1985 which is in contravention of the decision of this Hon’ble
Court in Union of India v. Saurabh Chatterji (2006) 9 SCC 759 and
a catena of other judgements that have explicitly iterated that grant
of bail in offences of commercial quantities without any
observations in regards to the satisfaction of the requirements
under Section 37 of the NDPS Act, 1985 is not sustainable in law
with the following observation: -

“3. The respondent was charged under Sections 8/21 of the

NDPS Act. By the impugned order he was released on bail on
the ground that he has been in jail for 15 months. There was no
whisper about the provision of Section 37 of the Act. In this
case the provision of Section 37 of the Act has been completely
given a go-by by the High Court which is not sustainable in
law.”

In the entirety of the impugned order passed by the Hon’ble High

Court there is no mentioning of the conditions of Section 37 of the
Act let alone any observation in regards to the fulfilment of the
conditions laid therein, and as such the Impugned Order is in teeth
of the Statuary Condition and the binding decision of this Hon’ble
Court and ought to be set aside.
I. BECAUSE, the Hon’ble High Court utterly failed to take into
consideration the provision of Section 37 of the Narcotics Drugs
and Psychotropic Substance Act, 1985 while granting bail to the
Respondent Accused in view of the settled position by this Hon’ble
Court in a catena of its decisions wherein this Hon’ble Court has
categorically held that any order of granting bail must take into
consideration Section 37 of the Act, and the same is being
reproduced herein below for the ready reference of this Hon’ble
Court:

Union of India v. Shiv Saran Gupta (2005) 12 SCC 354

“4. In our view, the impugned order cannot be sustained at
all. The provisions of Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 have not been taken into
consideration or complied with. The impugned order is
accordingly set aside. The application for bail will stand
rejected.”

Union of India v. Aharwa Deen (2000) 9 SCC 382

“2. […] But we see no justification for a counter-affidavit
being filed in a case in hand, since on the face of the
impugned order of the High Court granting bail cannot be
sustained as the High Court has not looked into the
provisions of Section 37 of the NDPS Act.”
“3. Having heard the learned counsel for the parties and on
examining the record of this case, we have no hesitation to
come to the conclusion that the High Court was totally in
error in granting bail without even focussing its attention to
the mandatory provision of Section 37 of the NDPS Act. In
that view of the matter, we allow the appeal, set aside the
impugned judgment of the High Court.”
 Union of India v, Merajuddin (1999) 6 SCC 43
“3. The respondent is accused of an offence under the NDPS
Act, 1985. The High Court appears to have completely
ignored the mandate of Section 37 of the Narcotic Drugs
and Psychotropic Substances Act while granting him bail.
The High Court overlooked the prescribed procedure. That
was not proper. We, therefore, allow this appeal and set
aside the impugned order of the High Court and cancel the
bail granted to the respondent.”

It is submitted that, the provision of Section 37 of the NDPS Act, is

the foremost consideration that the Court statutorily has to
consider. Since the Impugned Order makes no mention whatsoever
of any reasonable ground as mandated by Section 37 whilst
granting bail to the Respondent Accused, the said order is
untenable in law and liable to be set aside.

J. BECAUSE, the Hon’ble High Court’s order granting bail to the

Respondent Accused is ex-facie illegal as it fails to comply with
the mandate of Section 37 of the NDPS Act, as per the settled
position by this Hon’ble Court in Union of India v. Ram Samujh &
Anr. (1999) 9 SCC 429 wherein this Hon’ble Court had
categorically laid down that compliance of Section 37 is a statutory
mandate when granting bail with the following observations
reproduced herein below: -
“8. To check the menace of dangerous drugs flooding the
market, Parliament has provided that the person accused of
offences under the NDPS Act should not be released on bail
during trial unless the mandatory conditions provided in
Section 37, namely,
 (i) there are reasonable grounds for believing that the
accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail
are satisfied.
The High Court has not given any justifiable reason for not
abiding by the aforesaid mandate while ordering the release
of the respondent-accused on bail. Instead of attempting to
take a holistic view of the harmful socio-economic
consequences and health hazards which would accompany
trafficking illegally in dangerous drugs, the court should
implement the law in the spirit with which Parliament, after
due deliberation, has amended.”

K. BECAUSE, the Hon’ble High Court failed to record the existence

of any reasonable ground whatsoever to suggest that the Accused is
not guilty whilst granting bail to the Respondent Accused vide its
Impugned Order in view of the settled position by this Hon’ble
Court in Collector of Customs, New Delhi v. Ahmadalieva Nodira
(2004) 3 SCC 549 wherein this Hon’ble Court had made the
following observations:
“7. The limitations on granting of bail come in only when
the question of granting bail arises on merits. Apart from the
grant of opportunity to the Public Prosecutor, the other twin
conditions which really have relevance so far as the present
accused-respondent is concerned, are: the satisfaction of the
court 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. The
conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being not
guilty has to be based on reasonable grounds. The
expression “reasonable grounds” means something more
than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty
of the alleged offence. The reasonable belief contemplated in
 the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case at hand the High Court seems to have
completely overlooked the underlying object of Section 37. It
did not take note of the confessional statement recorded
under Section 67 of the Act. […]”

L. BECAUSE, the Hon’ble High Court while granting bail to the

Respondent Accused failed to muster the criteria laid down under
both, the NDPS Act as-well as the principles laid down under
Cr.P.C. as it has failed to take into consideration the parameters to
be borne in mind for granting bail as laid down by this Hon’ble
Court in Prashant Kumar Sarkar v. Ashish Chaterjee (2010) 14
SCC 496 wherein the following relevant observations were made: -

“9. [...] It is trite that this Court does not, normally,

interfere with an order passed by the High Court granting
or rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are: (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 [...]”
 12. It is manifest that if the High Court does not advert to
these relevant considerations and mechanically grants bail,
the said order would suffer from the vice of non-application
of mind, rendering it to be illegal [...]”

M.BECAUSE, the direction of the High Court to grant bail has been
exercised without the due application of mind and contravention of
the directions of this Court, and as such, the impugned order is
liable to be set aside.

N. BECAUSE, a cursory perusal of the impugned order shows non-

application of mind as the Hon’ble High Court utterly failed to
consider the relevant considerations and material on record when
making out a prima-facie case.

O. BECAUSE, the Hon’ble High Court failed to appreciate the fact

that there is all the likelihood of the Respondent Accused to
abscond and flee from the clutches of the law considering the fact
that the other two co-accused persons namely; Sura Munda and
Pagua Munda have still not been apprehended.

6. GROUNDS FOR INTERIM RELIEF

a. Because all the material on record prima-facie shows the
allegations against the Respondent to be true.
b. Because the Petitioner has established a prima-facie case against
the Respondent Accused and has every likelihood to succeed
before this Hon’ble Court.
 c. Because the balance of convenience lies in favour of Petitioner as
the Respondent is likely to flee from clutches of law and the
possibility of influencing witnesses to the trial cannot be ruled out.
d. Because granting of interim prayer of stay of the impugned order
will not cause irreparable loss to the Respondent Accused.
e. Because the present petition is not only a fit and proper case for the
indulgence of this Hon’ble Court but rather it is also in the interest
of justice that this Hon’ble Court may be pleased to grant interim
prayer of stay to impugned order.

7. MAIN PRAYER
IT IS THEREFORE MOST RESPECTFULLY PRAYED THAT THIS
HON’BLE COURT MAY GRACIOUSLY BE PLEASED TO:

a) Grant Special Leave to Appeal against the Impugned Order dated

11.01.2022 passed by the Hon’ble High Court of Jharkhand at
Ranchi in B.A. No. 14085 of 2021; and / or
b) Pass such Order or further Order(s) and / or direction(s) as this
Hon’ble Court may deem fit and proper in the facts and
circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN

DUTY BOUND SHALL EVER PRAY.

8. INTERIM PRAYER
IT IS MOST RESPECTFULLY PRAYED THAT THIS HON’BLE
COURT MAY GRACIOUSLY BE PLEASED TO:
 a) Stay the operation of the Impugned Order dated 11.01.2022 passed
by the Hon’ble High Court of Jharkhand at Ranchi in B.A. No.
14085 of 2021 till the pendency of this Special Leave Petition
and/or

b) Pass such Order or further Order(s) and / or direction(s) as this

Hon’ble Court may deem fit and proper in the facts and
circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN

DUTY BOUND SHALL EVER PRAY.
IN THE HON’BLE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CRL) NO. OF 2022

IN THE MATTER OF: -

THE STATE OF JHARKHAND …
PETITIONER

VERSUS

OSAID MIYAN …
RESPONDENT

CERTIFICATE
Certified that the Criminal Special Leave Petition is confined only to the
pleadings before the Court whose order is challenged and the documents
relied upon in those documents. No additional, facts, documents or
grounds have been taken or relied upon in this Criminal SLP. It is further
certified that copies of the documents / annexures attached to the
Criminal SLP are necessary to answer the questions of law raised in the
appeal or to make the grounds urged in the Criminal SLP for the
consultation of this Hon’ble Court. This certificate is given on the basis
of instructions given by the Appellants/persons authorized by the
Appellants whose affidavit is filed in support of this Criminal SLP.
Filed by:
(ANANDO MUKHERJEE)
ADVOCATE ON RECORD FOR THE PETITIONER
Dated:
Filed by:
APPENDIX

Section 37 of the Narcotic Drugs & Psychotropic Substances Act,

1985
37. Offences to be cognizable and non-bailable
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences
under section 19 or section 24 or section 27A and also for offences
involving commercial quantity] shall be released on bail or on his
own bond unless
(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
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 (2 of 1974) or any other law for the time being in force,
on granting of bail.
 IN THE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
I.A. NO. OF 2022
IN
SPECIAL LEAVE PETITION (CRL.) NO. OF 2022

IN THE MATTER OF: -

THE STATE OF JHARKHAND …
PETITIONER

VERSUS

OSAID MIYAN …
RESPONDENT

APPLICATION FOR SEEKING EXEMPTION FROM FILING

OFFICIAL TRANSLATION

TO,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES IN THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE APPLICATION OF
THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. The Petitioner is constrained to prefer this instant Special Leave
Petition against the Impugned Judgement and Order dated 11.01.2022
passed by the Hon’ble High Court of Jharkhand at Ranchi in B.A. No.
14085 of 2021, whereby and whereunder the Hon’ble High Court has
erroneously granted Bail to the Respondent Accused U/S(s) 17(b),
18(c), 21(c) and 22(c) of the NDPS Act, 1985 in Dashamfall P.S. Case
No. 07 of 2021.

2. That the facts and circumstances of the case have been set out in the
accompanying Special Leave Petition and, the same are not being
repeated herein for the sake of brevity, and the Petitioner craves the
leave of this Hon’ble Court to allow it to refer and rely on the same at
the time of hearing of this Petition.

3. That, the Annexure P- to P- which were in Hindi, have been translated

by a local Advocate, and the same has been marked to the Special
Leave Petition.

4. That it is in the interest of justice that the application may be allowed

an Petitioner may be exempted from filing official translation of the
abovementioned annexures.

PRAYER

IT IS MOST RESPECTFULYL AND HUMBLY PRAYED THAT;

THIS HON’BLE COURT MAY GRACIOUSLY BE PLEASED TO:
 a. Exempt the Petitioner from filing official translation of
ANNEXURE P- to P- , and / or

b. Pass any such Order or further Order(s) and / or direction(s) as this

Hon’ble Court may deem fit and proper in the facts and
circumstances of the case.

AND FOR THIS ACT OF KIDNESS, THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.
 IN THE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
I.A. NO. OF 2022
IN
SPECIAL LEAVE PETITION (CRL.) NO. OF 2022

IN THE MATTER OF: -

THE STATE OF JHARKHAND …
PETITIONER

VERSUS

OSAID MIYAN …
RESPONDENT

APPLICATION FOR SEEKING EXEMPTION FROM FILING

CERTIFIED COPY

TO,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES IN THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE APPLICATION OF
THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. The Petitioner is constrained to prefer this instant Special Leave
Petition against the Impugned Judgement and Order dated 11.01.2022
passed by the Hon’ble High Court of Jharkhand at Ranchi in B.A. No.
14085 of 2021, whereby and whereunder the Hon’ble High Court has
erroneously granted Bail to the Respondent Accused U/S(s) 17(b),
18(c), 21(c) and 22(c) of the NDPS Act, 1985 in Dashamfall P.S. Case
No. 07 of 2021.

2. That the facts and circumstances of the case have been set out in the
accompanying Special Leave Petition and, the same are not being
repeated herein for the sake of brevity, and the Petitioner craves the
leave of this Hon’ble Court to allow it to refer and rely on the same at
the time of hearing of this Petition.

3. That, the Petitioner is in the process of obtaining the certified copy,

hence, may be exempted from filing the certified copy of the
impugned judgement and order dated 11.01.2022.

4. That, the matter is of urgent importance and a lot of time has already
elapsed. Any further delay would cause irreparable loss to the
Petitioner.

5. That, in view of the above, the Petitioner be exempted from filing

certified copy of the impugned order.

PRAYER
IT IS MOST RESPECTFULYL AND HUMBLY PRAYED THAT;
THIS HON’BLE COURT MAY GRACIOUSLY BE PLEASED TO:

a. Exempt the Petitioner from filing certified copy of the Impugned

Final Judgement and Order dated 11.01.2022 passed by the
Hon’ble High Court of Jharkhand at Ranchi in B.A. No. 14085 of
2021, and / or

b. Pass any such Order or further Order(s) and / or direction(s) as this

Hon’ble Court may deem fit and proper in the facts and
circumstances of the case.

AND FOR THIS ACT OF KIDNESS, THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.