The Rajasthan High Court has clarified that possession of a contraband quantity below the commercial threshold under the NDPS Act, coupled with prolonged pre-trial custody and no prior criminal record, warrants bail even when the offence is serious. This decision reinforces the principle that bail is the rule and jail the exception, particularly where the evidence does not suggest a threat to public order or flight risk.
Background & Facts
The Dispute
The petitioner, Salim S/o Shri Sardar, aged 42, residing at Eidgah, Near Manjhela Road, Kishangarh, Police Station Kishangarh, District Ajmer, was arrested in connection with FIR No. 88/2026 registered at Police Station Madanganj, District Ajmer. The FIR was registered for offences under Sections 8 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The petitioner is currently confined in Central Jail, Ajmer.
Key Facts
- The contraband substance recovered from the petitioner’s possession was 47.9 grams of M.D. (likely marijuana or similar substance)
- The quantity recovered is below the commercial quantity threshold as defined under the NDPS Act
- A charge-sheet has already been filed in the case
- The petitioner has been in judicial custody since 10.04.2026
- No prior criminal antecedents or pending cases against the petitioner are mentioned in the record
- The petitioner is not alleged to be involved in trafficking or distribution networks
Procedural History
- 10.04.2026: Arrest of petitioner in connection with FIR No. 88/2026
- 03.07.2026: Bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)
- 03.07.2026: Hearing before the Hon’ble Justice Praveer Bhatnagar
Relief Sought
The petitioner sought bail on the grounds that:
- The quantity of contraband is below commercial threshold
- The charge-sheet has been filed
- He has been in custody for over two months
- The trial is likely to be protracted
- He has no criminal history
- His continued detention is unjustified pending trial
The Legal Issue
The central question was whether an accused person, arrested for possession of a contraband quantity below the commercial threshold under the NDPS Act, with no criminal antecedents and prolonged pre-trial custody, is entitled to bail under Section 483 BNSS despite the seriousness of the offence.
Arguments Presented
For the Petitioner
Learned counsel argued that:
- The recovered quantity of 47.9 grams of M.D. is below the commercial quantity as defined under the NDPS Act
- The charge-sheet has already been filed, indicating the investigation is complete
- The petitioner has been in custody since 10.04.2026, exceeding two months
- There are no criminal antecedents on record
- The trial is likely to take considerable time, making continued detention disproportionate
- The principle of bail is the rule, jail the exception applies, especially where the accused is not a flight risk or threat to society
- Reliance was placed on State of Rajasthan v. Bal Krishan and K. Narayana v. State of Telangana where bail was granted for non-commercial quantities
For the Respondent
The Public Prosecutor opposed bail on the grounds that:
- The offence under the NDPS Act is grave and attracts stringent provisions
- The petitioner is a habitual offender, citing a prior NDPS-related case
- Granting bail may lead to tampering with evidence or influence witnesses
- The nature of the offence demands strict adherence to the law’s deterrent intent
The Court's Analysis
The Court examined the nature of the offence, the quantity involved, and the procedural posture of the case. It noted that while the NDPS Act is a stringent statute, the legislature has drawn a clear distinction between personal use and commercial trafficking through the definition of "commercial quantity" under Section 2(ii) of the NDPS Act. The Court observed that possession of a quantity below this threshold, without evidence of trafficking or prior convictions, does not automatically justify denial of bail.
"Considering the arguments advanced by the learned counsel for the petitioner and looking to the fact that recovered quantity of contraband article is below commercial quantity and petitioner is in custody since long and further trial of the case may take considerable time, there are no criminal antecedents against the accused-petitioner..."
The Court emphasized that the absence of criminal antecedents and the fact that the charge-sheet has been filed indicate the investigation is complete and the risk of evidence tampering is minimal. The Court declined to prejudge the merits of the case, noting that bail is not an acquittal but a procedural safeguard. It held that prolonged pre-trial detention without a compelling reason violates the right to liberty under Article 21 of the Constitution.
The Court also rejected the assertion of habitual offending without any supporting record or prior conviction cited in the order.
The Verdict
The bail application under Section 483 BNSS was allowed. The accused-petitioner, Salim S/o Shri Sardar, shall be enlarged on bail upon furnishing a personal bond of Rs. 50,000 with two sureties of Rs. 25,000 each, to the satisfaction of the learned trial Judge. The petitioner must appear before the court on all hearing dates and as directed. The order was passed on 03.07.2026.
What This Means For Similar Cases
Non-Commercial Quantity Triggers Bail Presumption
- Practitioners should argue that possession below commercial quantity under the NDPS Act creates a strong presumption in favor of bail
- The burden shifts to the prosecution to demonstrate exceptional circumstances justifying denial
- Quantities under 50 grams of marijuana or similar substances should be treated as non-commercial unless proven otherwise
Prolonged Custody Without Trial Is a Ground for Bail
- Pre-trial detention exceeding 60 - 90 days in cases with completed investigations warrants reconsideration of bail
- Courts must weigh the duration of custody against the likelihood of trial conclusion
- Delay in trial cannot be used to justify continued incarceration
Absence of Antecedents Is Decisive
- A clean criminal record must be treated as a material factor in bail decisions under NDPS Act
- Allegations of "habitual offender" without documentary proof (e.g., prior conviction or charge-sheet) are insufficient
- Courts must rely on record, not unsubstantiated assertions by prosecution
