The Rajasthan High Court has reaffirmed that bail under the NDPS Act cannot be denied solely on the gravity of the offence when there is no direct recovery from the accused and co-accused have already been granted bail. This decision underscores the importance of parity in judicial treatment and the absence of prima facie evidence against the individual applicant.
Background & Facts
The Dispute
The petitioner, Badshah Khan S/o Amirullah Khan, aged approximately 40 years, was arrested in connection with F.I.R. No. 25/2023 registered at Police Station Arnod, District Pratapgarh, Rajasthan, for offences under Section 8 and Section 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The prosecution alleges that 137 kilograms of poppy husk/straw, packed in six plastic sacks, was recovered from a mini truck-tempo bearing registration number MP-43-L-2714. The petitioner was not the driver or owner of the vehicle and was not present at the time of recovery.
Key Facts
- Contraband (137 kg of poppy husk) was recovered from a vehicle, not from the petitioner’s person, residence, or conscious possession.
- The petitioner’s involvement is alleged solely on the basis of disclosure statements made by co-accused.
- No independent circumstantial evidence links the petitioner to the contraband or the transaction.
- The petitioner has been in judicial custody since 31.10.2024.
- Five co-accused - Mangilal, Zahid, Dheeraj, and Areef @ Kale Khan - have already been granted bail by coordinate benches of the same High Court.
- The trial is expected to take a prolonged period due to the complexity of evidence and number of accused.
Procedural History
- 31.10.2024: Petitioner arrested and taken into judicial custody.
- First Bail Application: Filed and dismissed.
- 13.05.2026: Second bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), equivalent to Section 439 CrPC.
- 13.05.2026: Hearing before the High Court of Judicature for Rajasthan at Jodhpur.
The Parties' Positions
For the Petitioner:
- Argued that the prosecution has failed to establish any direct or circumstantial link between the petitioner and the recovered contraband.
- Highlighted that the sole basis of accusation is the uncorroborated disclosure statements of co-accused.
- Pointed out that all five co-accused have been granted bail by coordinate benches, creating a clear disparity in judicial treatment.
- Emphasized that the petitioner has been in custody for over six months and the trial is likely to extend for years.
For the Respondent (State):
- Opposed bail on the grounds that the offence under the NDPS Act is serious and attracts stringent bail conditions.
- Did not dispute that the contraband was not recovered from the petitioner’s possession.
- Did not refute the fact that co-accused had been granted bail.
- Offered no additional evidence to counter the petitioner’s submissions.
Relief Sought
The petitioner sought release on bail, subject to conditions, pending trial, citing prolonged custody, absence of direct evidence, and parity with co-accused who were already enlarged.
The Legal Issue
The central question was whether an accused under the NDPS Act can be denied bail solely on the nature of the offence when there is no recovery from his possession, no corroborative evidence, and co-accused have already been granted bail by coordinate benches of the same court.
Arguments Presented
For the Appellant/Petitioner
The petitioner’s counsel relied on the principle of parity in bail jurisprudence, citing State of Rajasthan v. Bal Krishan and Kunwar Singh v. State of Rajasthan, to argue that where co-accused in the same case have been granted bail on similar facts, denial of bail to one accused without compelling reasons violates Article 14 of the Constitution. He further submitted that under Narayan Singh v. State of Maharashtra, mere possession of contraband in a vehicle does not establish guilt of a passenger or associate unless there is proof of knowledge or control. The absence of any recovery from the petitioner’s person or premises, coupled with the lack of independent evidence, rendered the case weak on prima facie grounds.
For the Respondent/State
The Public Prosecutor opposed bail on the basis that offences under Sections 8 and 29 of the NDPS Act are non-bailable and involve large quantities of narcotics, warranting strict judicial caution. However, he conceded that the prosecution had no evidence placing the petitioner in direct possession of the contraband and could not challenge the fact that co-accused had been granted bail. No counter-evidence or legal distinction was offered to justify differential treatment.
The Court's Analysis
The Court examined the legal framework governing bail under Section 483 BNSS, which retains the principles of Section 439 CrPC. It noted that while the NDPS Act imposes stringent conditions for bail, the Supreme Court in Nikesh Tarachand Shah v. Union of India has held that such restrictions cannot override the fundamental right to liberty under Article 21. The Court emphasized that bail is the rule and jail the exception, particularly where the prosecution fails to establish a prima facie case.
"The fact that the contraband was not recovered from the conscious possession of the petitioner, and that co-accused in the same case have already been enlarged on bail, creates a compelling case for parity and fairness."
The Court observed that the prosecution’s case rests entirely on disclosure statements, which are inadmissible as substantive evidence under Section 27 of the Evidence Act unless corroborated. No such corroboration was presented. The Court further noted that the prolonged period of custody - over six months - and the anticipated length of trial weighed heavily in favor of granting bail. The Court explicitly declined to express any opinion on the merits of the case, clarifying that its observations were confined to the bail stage.
The Verdict
The petitioner succeeded. The Court allowed the second bail application and ordered the release of Badshah Khan on personal bond of Rs. 1,00,000 and two sureties of Rs. 50,000 each, to be furnished to the satisfaction of the trial court. He is required to appear before the trial court on all hearing dates and whenever summoned. The Court directed that its observations shall not prejudice the trial court’s evaluation of evidence. The petitioner shall be released within 24 hours of compliance with bail conditions, provided he is not detained in any other case.
What This Means For Similar Cases
Parity in Bail Grants Is Mandatory
- Practitioners must cite coordinate bench bail orders in identical factual scenarios to challenge discriminatory denial of bail.
- Courts cannot justify denial of bail to one accused merely because the offence is serious if co-accused are released on similar facts.
No Recovery = Weak Prima Facie Case
- In NDPS cases, absence of recovery from the accused’s person, residence, or vehicle control significantly weakens the prosecution’s case at the bail stage.
- Disclosure statements alone are insufficient to oppose bail unless independently corroborated.
Custody Duration and Trial Length Are Critical Factors
- Prolonged pre-trial custody (beyond six months) in cases with no strong prima facie evidence must be weighed heavily in favor of bail.
- Courts must consider the realistic timeline of trial completion when assessing the necessity of continued detention.
Burden of Justification Shifts to the State
- Once the accused demonstrates absence of direct evidence and existence of bail grants to co-accused, the burden shifts to the prosecution to explain why the same conditions should not apply.
- Silence or lack of rebuttal by the State is treated as acquiescence to the petitioner’s factual assertions.
Bail Conditions Must Be Reasonable
- Personal bonds and sureties must be proportionate and not punitive.
- The Court’s direction to furnish sureties "to the satisfaction of the trial court" preserves judicial discretion without imposing undue hardship.
