The Bombay High Court has clarified that mere proximity to a co-accused in possession of narcotics, without evidence of knowledge or intent, cannot sustain a charge of conscious possession under the NDPS Act. This ruling reinforces the requirement of mental awareness alongside physical control, offering critical guidance for bail applications in drug-related offences.
Background & Facts
The Dispute
The applicant, Mosin Hanif Shaikh, is Accused No. 2 in Crime No. 412 of 2024, registered at the Indiranagar Police Station, Nashik, for offences under Sections 8C, 22C, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The case was designated as Special NDPS Case No. 158 of 2025 and is pending before the Additional Sessions Judge, Nashik. The prosecution alleges that the applicant and Accused No. 1 were found in possession of 61.5 grams of Mefedrone (MD) and other contraband valued at Rs. 3,22,500 for sale.
Key Facts
- Contraband weighing 61.5 grams of Mefedrone was recovered exclusively from Accused No. 1, not from the applicant.
- No drugs, currency, or incriminating material were found on the applicant’s person or in his immediate vicinity.
- The applicant and Accused No. 1 were reportedly at the Indiranagar Jogging Track, Nashik, on 05.12.2024.
- Call Detail Records (CDR) show a call between the applicant and Accused No. 1 on 05.12.2024.
- The applicant has no prior criminal record.
- The charge sheet has not yet been framed as of the date of the bail hearing.
Procedural History
- 05.12.2024: Alleged incident at Indiranagar Jogging Track, Nashik.
- 06.12.2024: Applicant arrested by NDPS Department.
- 15.10.2025: Bail application rejected by the Additional Sessions Judge, Nashik, in Special NDPS Case No. 158 of 2025.
- 15.07.2026: Present bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, before the Bombay High Court.
The Parties' Positions
Applicant’s Position: The applicant contends that his mere presence with Accused No. 1 does not establish conscious possession. He asserts that there is no evidence he knew of the contraband, had any control over it, or participated in its transportation or sale. He emphasizes the absence of any recovered material from his person and the non-framing of charges.
Respondent’s Position: The State argues that the applicant’s presence with Accused No. 1, coupled with a prior phone call on 05.12.2024, creates a reasonable inference of awareness and complicity. It contends that the quantity of contraband being commercial triggers the stringent conditions of Section 37 of the NDPS Act.
Relief Sought
The applicant seeks regular bail in Special NDPS Case No. 158 of 2025, arguing that the prosecution has failed to establish a prima facie case of conscious possession against him.
The Legal Issue
The central question was whether conscious possession under the NDPS Act can be inferred solely from proximity to a co-accused and a prior phone call, in the absence of any contraband recovered from the applicant or evidence of shared intent.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel, Mr. Ranjit Jadhav, relied on the Supreme Court’s definition of conscious possession in Rakesh Kumar Raghuvanshi v. State of M.P., emphasizing that it requires both physical control and mental awareness. He argued that the prosecution has not adduced any evidence - such as incriminating statements, recovered items, or corroborative witness testimony - to show the applicant knew of the contraband. He highlighted that the charge has not been framed, indicating insufficient material to proceed to trial. He further submitted that the applicant has no criminal antecedents and is not a flight risk.
For the Respondent/State
Ms. Gauri Rao, APP for the State, contended that the applicant’s presence at the scene with Accused No. 1, combined with the CDR showing communication on the day of the incident, supports an inference of joint criminal intent. She argued that the commercial quantity of contraband triggers the strict bail conditions under Section 37 of the NDPS Act, and that the applicant’s role as a facilitator cannot be ignored merely because drugs were not found on him. She urged the Court to deny bail on the grounds of potential tampering and risk of absconding.
The Court's Analysis
The Court began by affirming the settled legal principle that conscious possession under the NDPS Act is not synonymous with physical possession. As held in Rakesh Kumar Raghuvanshi v. State of M.P., it demands both physical control and mental awareness of the illicit nature of the substance. The Court noted that the prosecution has not placed any material on record indicating that the applicant had knowledge of the contraband carried by Accused No. 1.
"Conscious possession refers to a scenario where an individual not only physically possesses a narcotic drug or psychotropic substance but is also aware of its presence and nature. In other words, it requires both physical control and mental awareness."
The Court observed that the absence of any recovered contraband from the applicant’s person, coupled with the lack of any incriminating documents, statements, or evidence of conspiracy, renders the charge under Section 29 speculative. While the CDR showed a call on 05.12.2024, the Court held that such evidence alone, without corroboration, cannot establish knowledge or intent. The Court further noted that the prosecution has not demonstrated any overt act by the applicant to facilitate the offence.
The Court emphasized that Section 37 of the NDPS Act, while imposing stringent bail conditions, does not dispense with the requirement of prima facie proof of guilt. The burden remains on the prosecution to establish a reasonable basis for belief in the accused’s guilt. In this case, the Court found no such basis.
The Court also took note of the applicant’s clean record and the fact that charges have not yet been framed, indicating that the investigation is still in a preliminary stage. The Court concluded that the applicant’s detention without prima facie evidence of conscious possession would amount to a violation of his right to personal liberty under Article 21 of the Constitution.
The Verdict
The applicant succeeded. The Court granted regular bail on the following terms: (a) The applicant shall be released upon furnishing a personal bond of Rs. 50,000 with one or two local sureties of like amount; (b) He shall not tamper with evidence or intimidate witnesses; (c) He shall submit his residential address and contact details to the Investigating Officer within three days of release and report any changes; (d) He shall report to the Indiranagar Police Station on the 4th Saturday of every month from 11:00 am to 12:00 pm until framing of charges; (e) He shall appear before the Additional Sessions Judge, Nashik, on all hearing dates; (f) Absence on a fixed date shall constitute breach of bail conditions; (g) He shall not commit any further offence under the NDPS Act. The Court clarified that these observations are strictly for bail purposes and do not prejudge the trial.
What This Means For Similar Cases
Conscious Possession Requires More Than Proximity
- Practitioners must now argue that mere presence or communication records alone cannot establish conscious possession under the NDPS Act.
- Bail applications should focus on the absence of recovered contraband, lack of incriminating statements, and failure to prove shared intent.
- The burden remains on the prosecution to demonstrate knowledge and control - not mere association.
Non-Framing of Charges Supports Bail
- Where charges have not been framed, courts may view the prosecution’s case as still under development, strengthening the accused’s bail plea.
- Delay in framing charges may be cited as evidence of weak prima facie case, especially in NDPS matters.
- Courts are likely to scrutinize the quality of evidence more rigorously before denying bail under Section 37.
CDR Alone Is Insufficient for Inference of Conspiracy
- Call records must be corroborated by other evidence - such as location data, recovered items, or witness testimony - to support an inference of criminal collaboration.
- Courts will not permit speculative inferences based solely on telephonic contact.
- Defence counsel should challenge the probative value of CDRs in isolation during bail hearings.
