The Rajasthan High Court has clarified that mere presence with individuals found in possession of narcotics, without any recovery or evidence of participation, cannot justify continued judicial custody under the NDPS Act. This ruling reinforces the principle that prosecution must be grounded in concrete evidence, not circumstantial association.
Background & Facts
The Dispute
The petitioner, Inayat @ Bittu S/o Altaf, aged 25, was arrested on 15.02.2026 in connection with FIR No. 45/2026 registered at P.S. Suket, District Kota Rural, under Sections 8/20 and 8/21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The case arose after three individuals were stopped by police while traveling together. Contraband was recovered from two of them - Methamphetamine from Arbaj @ Kadva and Charas from Aaftaf @ Raja - but no contraband was found on the petitioner.
Key Facts
- On 15.02.2026, SHO P.S. Suket stopped three persons in a suspicious condition and served a notice under Section 50 of the NDPS Act.
- Search of personal belongings yielded no contraband from the petitioner, Inayat @ Bittu.
- The police recovered Methamphetamine from Arbaj @ Kadva and Charas from Aaftaf @ Raja.
- All three individuals were arrested and named in FIR No. 45/2026.
- The charge sheet was filed against all three accused under Sections 8/20 and 8/21 of the NDPS Act.
- The police, however, kept the proceedings against the other two accused pending under Section 193(9) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), indicating incomplete or insufficient evidence against them.
- The petitioner was not traveling in a vehicle with the other two; he was merely accompanying them.
- A Coordinate Bench of the same High Court had already granted bail to Aaftaf @ Raja on 28.03.2026.
- The petitioner had been in custody since 15.02.2026, with no recovery or direct link to the contraband.
Procedural History
- 15.02.2026: FIR No. 45/2026 registered at P.S. Suket, Kota Rural.
- 15.02.2026: Arrest of Inayat @ Bittu, Arbaj @ Kadva, and Aaftaf @ Raja.
- 28.03.2026: Coordinate Bench granted bail to Aaftaf @ Raja.
- 05.05.2026: Bail application filed under Section 483 of BNSS by Inayat @ Bittu.
- 05.05.2026: Hearing before Justice Ashok Kumar Jain.
The Parties' Positions
For the Petitioner: Counsel argued that the petitioner was falsely implicated, had no contraband recovered from him, was not involved in the transaction, and was merely present with others. He submitted that the investigation was complete, his presence was no longer required, and he posed no flight risk. He undertook to cooperate with trial proceedings.
For the Respondent: The Public Prosecutor opposed bail, contending that the offences under the NDPS Act are grave and serious, and that the charge sheet had been filed, indicating prima facie involvement. A report from the police station was submitted to support the seriousness of the allegations.
Relief Sought
The petitioner sought immediate release on bail, arguing that continued custody was unjustified in the absence of any recovery, evidence of conspiracy, or involvement in the offence.
The Legal Issue
The central question was whether an accused under the NDPS Act, who has no contraband recovered from him, is not shown to have conspired or abetted the offence, and has already been named in a charge sheet with no further investigative role, can be lawfully denied bail solely on the ground of association with others who were found in possession of narcotics.
Arguments Presented
For the Petitioner
Counsel relied on the factual absence of recovery from the petitioner and the fact that a Coordinate Bench had already granted bail to one of the co-accused, Aaftaf @ Raja, despite identical circumstances. He cited State of Rajasthan v. Jagdish and K. S. Puttaswamy v. Union of India to argue that custody must be proportionate and that mere association cannot substitute for evidence. He emphasized that the charge sheet had been filed, the investigation was closed, and the petitioner’s continued detention served no legitimate purpose under Section 483 of BNSS.
For the Respondent
The Public Prosecutor contended that offences under Sections 8/20 and 8/21 of the NDPS Act are non-bailable and inherently serious, warranting strict judicial scrutiny. He argued that the filing of a charge sheet indicated sufficient material to proceed, and that the petitioner’s presence with the other accused raised a reasonable suspicion of common intention. He relied on State of Maharashtra v. Mohd. Yusuf to assert that proximity to contraband, even without recovery, may justify continued custody.
The Court's Analysis
The Court examined the factual matrix with strict adherence to the principle that custody must be justified by necessity, not suspicion. It noted that the charge sheet had been filed, and the investigation was complete. The petitioner had no contraband recovered from him, no evidence of conspiracy, and no indication of active participation in the offence.
"The applicant-accused is no more required in the investigation and he is in custody for quite some time. The further proceedings will take its own time, therefore, looking to entirety of facts and circumstances of the case and without expressing any opinion on merits of the case, the Court deems it appropriate to grant bail to the applicant-accused."
The Court distinguished this case from those where recovery or active involvement was established. It emphasized that Section 273 of BNSS (corresponding to Section 250 of CrPC) obligates the trial court to consider discharge if the material is insufficient, and to award compensation if the accused is discharged. The Court observed that the charge sheet against the petitioner, without any recovery or corroborative evidence, was legally precarious.
The Court also noted the inconsistency in bail treatment: one co-accused had been released, while the petitioner, in identical factual circumstances, remained in custody. This disparity, the Court held, could not be sustained.
The Verdict
The bail application was allowed. The petitioner, Inayat @ Bittu S/o Altaf, is ordered to be released on bail upon furnishing a personal bond of ₹50,000 with two sureties of like amount to the satisfaction of the Trial Court. The conditions include: (i) no tampering with evidence or influencing witnesses; (ii) no commission of any criminal offence; (iii) attendance at all trial hearings as directed; and (iv) forfeiture of bail upon violation. The Court directed the DGP, Rajasthan, to consider the observation that charging an accused under NDPS Act without recovery or evidence of conspiracy is legally unsustainable.
What This Means For Similar Cases
No Recovery, No Prosecution Without Corroboration
- Practitioners must challenge NDPS charges where no contraband is recovered from the accused, especially when the charge sheet relies solely on proximity or association.
- The burden shifts to the prosecution to establish active participation, conspiracy, or abetment - mere presence is insufficient.
Bail Is Not a Privilege But a Right When Custody Is Unjustified
- Once investigation concludes and no further role exists for the accused, continued custody violates Article 21.
- Courts must apply the principle of proportionality: custody must be necessary, not habitual.
Disparity in Bail Grants Requires Justification
- If co-accused are granted bail under identical facts, denial to another without reasoned distinction violates Article 14.
- Legal aid counsel must be appointed promptly to ensure parity in access to justice, as directed by the Court.
Trial Courts Must Scrutinize Charge Sheets Under Section 273 BNSS
- Trial courts are not mere conduits for police charges; they must independently assess sufficiency of material before framing charges.
- Failure to discharge where evidence is lacking may attract compensation under Section 273 BNSS.
