The Kerala High Court has clarified that mere proximity to contraband or employment status is insufficient to invoke the stringent bail restrictions under Section 37 of the NDPS Act. In a significant ruling, bail was granted to one accused while denied to another, based solely on the evidentiary link - or lack thereof - to the seized narcotics.
Background & Facts
The Dispute
Crime No.47/2026 of Thalapuzha Police Station, Wayanad, was registered on 21.01.2026 against two accused persons for offences under Sections 20(b)(ii)(A), 20(b)(ii)(C), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that 1.405 kilograms of hashish oil and 320 grams of ganja were found stored near a cattle shed adjacent to the residence of Accused No.1, Rasheed.P.
Key Facts
- The contraband was seized on 21.01.2026 at 04:05 p.m. from a cattle shed located 15 metres away from the house of Accused No.1.
- At the time of seizure, both accused were present inside the house of Accused No.1.
- Accused No.1, Rasheed.P (aged 43), is the alleged owner of the house and the cattle shed.
- Accused No.2, Jayaraj (aged 25), is alleged to be an employee of Accused No.1.
- The prosecution claims Accused No.2 procured the contraband from Visakhapatnam and handed it over to Accused No.1.
- The owner of the cattle shed, Mr. Ismail, deposed that he had rented it out to Accused No.1, establishing prima facie possession by Accused No.1.
- No direct evidence - such as CCTV footage, witness testimony, or communication records - links Accused No.2 to the procurement or storage of the contraband.
- Travel documents showing Accused No.2’s visit to Visakhapatnam were the sole basis for implicating him in procurement.
- Both accused were remanded to judicial custody on 21.01.2026.
- The investigation was nearly complete at the time of the bail hearing.
Procedural History
- 21.01.2026: FIR registered; both accused arrested and remanded to judicial custody.
- 21.02.2026: Additional Sessions Judge-II, Kalpetta, rejected bail applications in CRL.M.P. Nos. 03/2026 and 04/2026.
- 22.04.2026: Additional Sessions Judge-II, Kalpetta, rejected bail applications in CRL.M.P. No. 05/2026.
- 16.06.2026: Bail applications filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 were heard together by the Kerala High Court.
The Parties' Positions
For Accused No.1 (Rasheed.P):
- Counsel argued that there was no evidence proving his possession of the cattle shed, despite the owner’s statement.
- Contended that arrest was procedurally flawed as relatives were not informed of the grounds of arrest.
For Accused No.2 (Jayaraj):
- Counsel submitted that the prosecution had no material evidence connecting him to the contraband beyond his employment and travel history.
- Argued that Section 37 of the NDPS Act, which mandates stringent bail conditions, cannot apply without proof of possession or active involvement.
For the State:
- Public Prosecutor contended that the presence of contraband near the accused’s residence, coupled with employment and travel records, established a prima facie case under the NDPS Act.
- Argued that the gravity of the offence and the potential for evidence tampering warranted denial of bail.
Relief Sought
- Accused No.1 sought regular bail, challenging the application of Section 37 NDPS Act.
- Accused No.2 sought bail on grounds of insufficient evidence and non-application of Section 37.
The Legal Issue
The central question was whether Section 37 of the NDPS Act applies to an accused who lacks any proven possession or direct involvement in the storage or procurement of contraband, merely because they are employed by the person in whose residence the contraband was found.
Arguments Presented
For the Appellant/Petitioner
The counsel for Accused No.2 relied on State of Punjab v. Baldev Singh and K. Narayana Pillai v. State of Kerala to argue that possession under the NDPS Act requires actual control or dominion over the contraband, not mere proximity or association. He emphasized that travel records alone cannot establish procurement, especially in the absence of any corroborative evidence such as phone logs, receipts, or witness testimony. He further cited Siddharth v. State of Uttar Pradesh to assert that Section 37 cannot be invoked mechanically when the prosecution fails to establish a prima facie case of active participation.
For the Respondent/State
The Public Prosecutor contended that the location of the contraband - adjacent to the accused’s residence - and the employment relationship between the two accused created a reasonable inference of involvement. He argued that the NDPS Act is a special law meant to combat drug trafficking, and courts must adopt a strict approach to bail, particularly when quantities exceed the threshold under Section 20(b)(ii). He relied on State of Maharashtra v. Mohd. Yusuf to assert that the burden shifts to the accused to show why bail should be granted.
The Court's Analysis
The Court undertook a meticulous review of the evidence and the statutory framework under Section 37 of the NDPS Act, which mandates that bail shall not be granted unless the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail.
The Court observed that while the contraband was found near the house of Accused No.1, and the cattle shed was rented to him, there was no evidence that Accused No.2 had any control over the shed or the contraband. The prosecution’s case against Accused No.2 rested entirely on his employment and a single trip to Visakhapatnam - facts that, without corroboration, are insufficient to establish procurement or possession.
"The rigour of Section 37 of the NDPS Act cannot be attracted against the accused No.2 in the absence of any material connecting him to the possession or procurement of the contraband. Employment status and travel history, without more, do not satisfy the threshold for invoking the stringent bail conditions under the Act."
The Court further noted that the prosecution had not adduced any evidence of Accused No.2’s prior involvement in narcotics, nor had it established a nexus between his actions and the seizure. In contrast, the possession of the cattle shed by Accused No.1 was prima facie established through the testimony of the owner, Mr. Ismail. Therefore, Section 37 applied to Accused No.1, but not to Accused No.2.
The Court also rejected the procedural challenge raised by Accused No.1 regarding non-intimation of arrest grounds, as the records showed compliance with statutory requirements.
The Verdict
The Court dismissed the bail application of Accused No.1 (Rasheed.P) and allowed the application of Accused No.2 (Jayaraj). Accused No.2 was granted regular bail on the following conditions: (i) execution of a bond of Rs.1,00,000 with two solvent sureties of like amount; (ii) full cooperation with the investigation; (iii) appearance before the investigating officer every Saturday between 10.00 a.m. and 11.00 a.m.; (iv) no commission of any NDPS-related offence while on bail; (v) no contact with prosecution witnesses or tampering with evidence; (vi) no departure from Kerala without court permission; and (vii) any application for modification or cancellation of bail to be filed before the trial court. The order was effective immediately.
What This Means For Similar Cases
Possession Must Be Proven, Not Assumed
- Practitioners must now demonstrate actual dominion or control over the contraband to invoke Section 37 NDPS Act - proximity or employment alone is insufficient.
- In bail hearings, courts will scrutinize whether the prosecution has adduced direct or circumstantial evidence linking the accused to possession, not merely association.
Travel Records Are Not Conclusive
- A single trip to a known drug transit point, without corroborating evidence (e.g., receipts, communications, eyewitnesses), cannot form the basis for invoking stringent bail provisions.
- Defence counsel should challenge the sufficiency of such evidence at the earliest opportunity, particularly in cases involving small-scale or low-level accused.
Section 37 Is Not Automatic
- The Court reaffirmed that Section 37 is not a blanket bar to bail. Its application is contingent on the prosecution establishing a prima facie case of active involvement.
- This judgment reinforces the principle from K. Narayana Pillai that the burden of proof remains with the prosecution, even under special statutes.
Procedural Compliance Is Non-Negotiable
- Even in NDPS cases, courts will uphold procedural safeguards such as intimation of arrest grounds to relatives. Failure to comply may render arrest vulnerable to challenge.
- Defence counsel should routinely verify compliance with Section 50 of the NDPS Act and Section 50 of BNSS during bail applications.
