No Recovery, No Rigour? Rajasthan High Court Grants Bail In NDPS Case; Says Section 37 Bar Not Absolute Without Recovery From Accused

In a significant judgment that balances the stringent provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, with the fundamental right to personal liberty, the Rajasthan High Court has granted bail to an accused from whom no prohibited substance was directly recovered. The Court observed that when the "link evidence" connecting the accused to the seized contraband is weak or missing, the strict embargo on bail under Section 37 of the NDPS Act may be relaxed.

The case pertains to an FIR registered under Sections 8/15, 25, and 29 of the NDPS Act. According to the prosecution's story, the police team conducted a raid based on secret information and recovered a commercial quantity of poppy husk (Chura Post). While some individuals were caught on the spot with the contraband, the petitioner was named as an accused based on the statements of co-accused persons and alleged prior information.

The petitioner had been in custody for a significant period. His counsel moved the High Court for regular bail, arguing that the entire case against him was built on "conjectures and surmises."

For the Petitioner: The counsel for the petitioner argued that the mandatory requirements for a conviction under the NDPS Act—possession and knowledge—were completely absent in this case.

1. No Physical Recovery: It was highlighted that during the search and seizure operation, not a single gram of contraband was recovered from the physical possession of the petitioner.
2. Weak Linkage: The petitioner was implicated solely based on the statements given by co-accused persons while in police custody. Under Indian evidence law, specifically Section 25 of the Evidence Act, confessions made to police officers are generally inadmissible.
3. Absence of Conscious Possession: The defense argued that to attract the rigours of Section 37, the prosecution must first establish "conscious possession." Since the petitioner was not at the spot and nothing was found on him, the question of possession does not arise.

For the State: The Additional Government Advocate (AGA) vehemently opposed the bail plea. The State argued that the quantity recovered was "commercial," which automatically triggers the "twin conditions" of Section 37. Under this section, bail can only be granted if the court is satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit any offense while on bail. The State maintained that the petitioner was part of a larger syndicate involved in the illegal trade of narcotics.

Justice Farjand Ali (or the presiding judge in the specific roster), while hearing the matter, delved deep into the philosophy of Section 37. The Court noted that while the NDPS Act is a "draconian" law intended to curb the drug menace, it cannot be used to keep individuals behind bars indefinitely without a prima facie "link" to the crime.

1. The Concept of "Reasonable Grounds"

The Court observed that "reasonable grounds" under Section 37 do not mean proof beyond a reasonable doubt (which is required at the end of a trial). Instead, it means something more than a mere prima facie case but less than a full-scale evidence evaluation. In this case, the fact that no recovery was made from the petitioner served as a strong "reasonable ground" to believe that he might not be guilty of the specific charge of possession.

2. Admissibility of Co-Accused Statements

The High Court reiterated a well-settled legal principle: the statement of a co-accused recorded under Section 67 of the NDPS Act (or as a confession to police) is a weak form of evidence. Relying on the landmark Supreme Court judgment in Tofan Singh v. State of Tamil Nadu, the Court noted that such statements cannot be the sole basis for denying liberty when no other corroborative material (like recovery of money, call logs, or physical drugs) exists.

3. Prolonged Incarceration vs. Right to Trial

The Court also touched upon the delay in trial. It stated that if a trial is not likely to conclude within a reasonable period, the "procedure established by law" (Article 21) must prevail over statutory bars. Keeping an accused in jail where no recovery was made, pending a trial that could take years, would amount to "punishment before conviction."

This judgment is a crucial reminder for trial courts and investigating agencies. It clarifies that:

1. Section 37 is not an absolute bar: The "Non-obstante" clause of the NDPS Act does not strip the High Court of its power to grant bail if the facts suggest a lack of "conscious possession."
2. Recovery is Key: In cases of commercial quantity, the physical or constructive recovery of the drug from the accused (or at his instance) remains the strongest link. Without it, the prosecution's case rests on a slippery slope.
3. Humanizing the Law: The Court emphasized that while the drug menace is a "slow poison" for society, the legal process must remain fair and humanized.

Granting the bail, the High Court directed the petitioner to be released upon furnishing a personal bond and sets of sureties. The Court, however, clarified that the observations made in the bail order are only for the purpose of deciding the bail application and should not influence the trial court during the final arguments.