The Kerala High Court has clarified that in cases under the NDPS Act, continued judicial custody cannot be sustained merely due to the seriousness of the offence when the investigation is complete and no further detention serves a legitimate purpose. This ruling reinforces the principle that bail is the norm and custody the exception, even in drug-related offences.
Background & Facts
The Dispute
Accused Nos. 2 and 3, Abhijith Purushothaman and Sheljuqu Biju, were arrested on 3.4.2026 in connection with Crime No. 288/2026 registered at Nedumbassery Airport Police Station, Ernakulam. They are alleged to have been in possession of 3.58 grams of MDMA (3,4-methylenedioxymethamphetamine) at Apartment No. 3C, MJ Residency, Kariyad, Nedumbassery, at approximately 12:45 a.m. on that date. The possession is alleged to be in violation of Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Key Facts
- The alleged offence occurred on 03.04.2026 at 12:45 a.m.
- The quantity of MDMA recovered was 3.58 grams.
- The accused were taken into custody on the same day, 03.04.2026, and remanded to judicial custody.
- The recovery of the contraband was effected during the investigation.
- The accused are not alleged to have been involved in trafficking, manufacturing, or distribution; the charge is limited to possession.
- No weapons, large sums of money, or incriminating documents were reported to have been seized.
- The prosecution has not alleged any prior criminal record or flight risk.
Procedural History
- 03.04.2026: Arrest and remand to judicial custody.
- 22.05.2026: Additional Sessions Judge, Ernakulam, rejected earlier bail application in Crl. MP No. 4 of 2026.
- 05.06.2026: Present bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the High Court.
- Investigation was stated to be "almost over" by the time of the hearing.
The Parties' Positions
For the Applicants
The learned counsel contended that the applicants are innocent and falsely implicated. No material evidence on record connects them to the alleged offence. The recovery, though made, does not establish active involvement or intent beyond mere possession. The investigation is complete, and there is no justification for continued detention.
For the Respondent
The Senior Public Prosecutor argued that the offence under the NDPS Act is serious and attracts stringent bail conditions. The nature of the crime, involving a controlled substance, warrants denial of bail at this stage to prevent interference with the investigation and to deter drug-related offences.
Relief Sought
The applicants sought regular bail with reasonable conditions, arguing that their continued detention is unnecessary since the investigation is complete and the recovery has been documented.
The Legal Issue
The central question was whether continued judicial custody of an accused under the NDPS Act is justified when the investigation is nearly complete, the recovery has been effected, and there is no allegation of flight risk or threat to witnesses.
Arguments Presented
For the Appellant/Petitioner
The counsel relied on the principle that bail is the rule and jail the exception, even under stringent statutes like the NDPS Act. Citing State of Rajasthan v. Balchand, the counsel emphasized that the gravity of the offence alone cannot override the right to liberty. Since the investigation was nearly complete and no further custodial interrogation was required, detention served no legitimate purpose. The applicants had no prior criminal record and were not alleged to be part of a larger network.
For the Respondent/State
The Public Prosecutor contended that offences under the NDPS Act are per se serious and that courts must exercise caution in granting bail. Reliance was placed on Narayan Singh v. State of Maharashtra to argue that possession of even small quantities of narcotics warrants strict scrutiny. The State argued that granting bail might embolden others and undermine the deterrent effect of the law.
The Court's Analysis
The Court examined the stage of investigation and the nature of the allegations. It noted that the recovery of the contraband had been completed and the case diary indicated that the investigation was "almost over." The Court observed that there was no allegation of the accused being part of a larger syndicate, no evidence of weapons or large-scale trafficking, and no indication of attempts to influence witnesses or destroy evidence.
"The mere fact that the offence is under the NDPS Act does not ipso facto disentitle the accused to bail, particularly when the investigation is complete and there is no cogent reason to believe that the accused will abscond or tamper with evidence."
The Court distinguished between the need for custodial interrogation and the need for continued detention after the evidentiary phase is concluded. It held that the purpose of custody under Section 483 BNSS is not punitive but procedural, and once the procedural necessity ceases, liberty must be restored.
The Court also rejected the argument that the seriousness of the offence alone justifies denial of bail, reaffirming that the presumption of innocence remains intact until conviction. The Court emphasized that bail conditions can adequately safeguard the interests of the investigation without requiring incarceration.
The Verdict
The bail application was allowed. The applicants are directed to be released on bail upon executing a personal bond of Rs. 1,00,000 each with two solvent sureties of the same amount. They must cooperate fully with the investigation, appear before the investigating officer every Saturday between 10:00 a.m. and 11:00 a.m., and appear whenever summoned. They shall not commit any similar offence, tamper with evidence, contact witnesses, or leave the State of Kerala without prior permission. Any application for modification or cancellation of bail shall be filed before the trial court.
What This Means For Similar Cases
Investigation Completion Triggers Bail Entitlement
- Practitioners must highlight the stage of investigation when seeking bail under the NDPS Act - if recovery is complete and no further custodial interrogation is needed, detention loses justification.
- Courts cannot rely solely on the nature of the offence; the factual posture of the case must be examined.
- Bail applications should be supported by affidavits or case diary extracts showing investigation progress.
Bail Conditions Are Sufficient Safeguards
- The Court’s imposition of specific, enforceable conditions (weekly appearances, no witness contact, no travel outside state) demonstrates that liberty can be balanced with investigative needs.
- Conditions like mandatory reporting to the investigating officer are preferable to custody in low-risk possession cases.
- Defence counsel should proactively propose tailored conditions to address prosecution concerns without opposing bail outright.
NDPS Cases Are Not Automatically Bail-Proof
- This judgment reinforces that Section 37 of the NDPS Act does not create an absolute bar to bail - it merely raises the threshold.
- Courts must still apply the triple test (likelihood of flight, tampering, reoffending) even in drug cases.
- Small quantity possession cases (under 5 grams) are increasingly being treated as distinct from trafficking or commercial offences.
