The Kerala High Court has clarified that in cases under the NDPS Act, the absence of criminal antecedents and the advanced stage of investigation are sufficient grounds to grant regular bail, even where the quantity of contraband is substantial. This decision reinforces the principle that bail is the rule and jail the exception, particularly when detention serves no further investigative or societal purpose.
Background & Facts
The Dispute
The applicants, Sainool Islam (aged 23) and Raipan Mandal (aged 25), both residents of Domkal, Murshidabad, West Bengal, were arrested on 11.04.2026 in connection with Crime No. 57/2026 registered by the Ernakulam Excise Range Office. They are accused of possessing and transporting 2.148 kg of ganja near Vattekkunnam Road, Edappally North Village, in violation of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Key Facts
- The alleged offence occurred on 11.04.2026 at 1:30 a.m.
- The accused were apprehended during a routine patrol by excise officials
- A recovery memo was prepared for 2.148 kg of ganja seized from their possession
- Both accused were produced before the Magistrate on the same day and remanded to judicial custody
- No weapons, narcotics paraphernalia, or incriminating documents were recovered apart from the ganja
- Both accused have no prior criminal record or history of NDPS-related offences
- The investigation, including forensic analysis and witness statements, is reported to be nearly complete
Procedural History
- 11.04.2026: Arrest and remand to judicial custody
- 25.05.2026: Application for bail filed before the First Additional District and Sessions Court, Ernakulam; bail denied
- 05.06.2026: Bail application filed before the Kerala High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Relief Sought
The applicants sought regular bail on the grounds that they are first-time offenders, the investigation is substantially complete, and continued custody serves no legitimate purpose. They also requested conditions to ensure cooperation with the investigation and non-interference with witnesses.
The Legal Issue
The central question was whether regular bail under Section 483 of the BNSS can be granted to accused persons in NDPS Act cases where the quantity of contraband is significant, but there are no criminal antecedents and the investigation is nearly concluded.
Arguments Presented
For the Appellant/Petitioner
The learned counsel argued that the applicants are innocent and falsely implicated, with no material evidence linking them to the crime beyond the recovery of ganja. She emphasized that the accused have no prior convictions, are not flight risks, and the investigation has reached a stage where their continued detention is unnecessary. She relied on the principle that bail is the rule, not the exception, even under stringent statutes like the NDPS Act, provided the conditions for release are strictly adhered to.
For the Respondent/State
The Senior Public Prosecutor contended that the offence involved a substantial quantity of ganja (over 2 kg), which falls under the purview of serious trafficking under Section 20(b)(ii)B of the NDPS Act. He argued that such offences inherently threaten public order and that granting bail at this stage could risk witness tampering or destruction of evidence, despite the investigation being nearly complete.
The Court's Analysis
The Court examined the nature of the offence, the stage of investigation, and the personal circumstances of the accused. It noted that while the NDPS Act imposes strict penalties, the Supreme Court in State of Punjab v. Baldev Singh and Kunwar Singh v. State of U.P. has consistently held that the gravity of the offence alone cannot override the fundamental right to liberty under Article 21 of the Constitution.
"The fact that the investigation is almost over and the recovery has been effected removes any plausible ground for continued custody to aid probe."
The Court further observed that the absence of criminal antecedents, the lack of any allegation of violence or organized trafficking, and the fact that the accused are not residents of Kerala but temporary visitors, all weigh in favor of bail. The Court rejected the State’s speculative concerns about witness tampering, noting that such fears cannot override the accused’s right to liberty when concrete evidence of risk is absent.
The Court also emphasized that Section 483 of the BNSS codifies the modern bail jurisprudence, which prioritizes proportionality and necessity over presumption of guilt. The conditions proposed by the applicants were deemed sufficient to safeguard the integrity of the investigation.
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, each also furnishing a bond of Rs. 1,00,000. One surety must be from the State of Kerala. The applicants must appear before the investigating officer every Saturday between 10:00 a.m. and 11:00 a.m., and as otherwise required. They shall not leave Kerala without court permission, shall not tamper with evidence or contact witnesses, and shall not commit any similar offence while on bail. Any application for modification or cancellation of bail shall be filed before the jurisdictional court.
What This Means For Similar Cases
Bail Is Not Automatically Denied in NDPS Cases
- Practitioners must argue that quantity alone does not negate bail under BNSS
- Courts must assess the stage of investigation and accused’s background as independent factors
- No prior record + completed investigation = strong presumption in favor of bail
Conditions Can Mitigate Risk Without Detention
- Mandatory weekly reporting and territorial restrictions are effective alternatives to custody
- Surety requirements from the state of jurisdiction reduce flight risk
- Prohibition on witness contact is enforceable and sufficient to prevent interference
Judicial Discretion Must Be Grounded in Evidence, Not Speculation
- Courts cannot deny bail based on hypothetical risks
- The burden shifts to the prosecution to demonstrate a real and tangible threat to investigation
- The prima facie case standard under BNSS does not equate to a presumption of guilt
