The Tripura High Court has reaffirmed that prolonged custody cannot serve as a standalone ground for granting bail in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985, where the statutory embargo under Section 37 remains applicable. The judgment underscores the narrow parameters for bail in drug offences and reinforces the requirement for credible, plausible grounds to believe the accused is not guilty.
Background & Facts
The Dispute
The bail application concerns Sri Bishu Kumar Tripura, accused in Melaghar P.S. Case No. 2025/MLG/002 registered under Sections 20(b)(ii)(c), 25, and 29 of the NDPS Act, 1985. The accused has been in judicial custody since his arrest on 13.05.2025, totaling 311 days as of the hearing date. The prosecution alleges recovery of 66 kg of dry ganja from a hut allegedly possessed by the accused on 10.01.2025, following a joint raid by the Enforcement Directorate (ED) and local police.
Key Facts
- On 10.01.2025, the ED received secret information from Pankaj Goyat, Assistant Director, Aizawl Sub-Zonal Office, regarding suspected psychotropic substances at the residence of Bishu Kumar Tripura in Larmai Bari, Melaghar.
- A joint raid was conducted at approximately 11:30 hours on 10.01.2025, with CRPF personnel cordoning the premises and two independent witnesses, Smt. Debalina Roy and Salfa Debbarma, present.
- During the search, a blue plastic drum and two white sacks emitting the smell of ganja were recovered. The accused’s father, present at the scene, allegedly stated that the contraband belonged to his son for sale.
- The recovered quantity was measured at 66 kg of dry ganja.
- The accused was arrested on 13.05.2025 and produced before the Special Judge on 14.05.2025.
- The charge sheet was filed and cognizance was taken by the Special Judge on 24.07.2025.
- As of the hearing, the prosecution had examined seven witnesses, including PW-2 Smt. Debalina Roy, a bank employee who was not a resident of the locality.
- The Tehsildar’s report confirmed that the hut from which the contraband was seized was occupied by the accused, not government land.
- The accused’s earlier bail application (BA No. 70 of 2025) was rejected by this Court on 28.08.2025.
Procedural History
- 10.01.2025: Joint ED-police raid conducted; 66 kg ganja recovered.
- 13.05.2025: Accused arrested by ED.
- 14.05.2025: Accused produced before Special Judge; counsel engaged.
- 24.07.2025: Cognizance taken by Special Judge; charge sheet filed.
- 28.08.2025: First bail application rejected by Tripura High Court (BA No. 70 of 2025).
- 20.03.2026: Present bail application (BA No. 42 of 2026) heard.
- 07.04.2026 - 16.04.2026: Trial scheduled for examination of remaining prosecution witnesses.
The Parties' Positions
For the Applicant
- Argued that the accused has been in custody for 311 days without conviction.
- Contended that none of the seven prosecution witnesses could directly link the accused to the contraband.
- Challenged the credibility of PW-2, Smt. Debalina Roy, who was not present at the scene during seizure and was brought to the ED office afterward.
- Asserted that the seized item was recovered from government land, not the accused’s private property, negating conscious possession.
- Relied on judgments from Kolkata and Rajasthan High Courts, and Supreme Court decisions in Union of India v. Vigin K Varghese (2025 SCC OnLine SC 2440) and Narcotics Control Bureau v. Mohit Aggarwal (2022 SCC 374), arguing that long incarceration and lack of direct evidence warrant bail.
- Submitted that Section 37 of the NDPS Act does not apply because the prosecution failed to establish the accused’s ownership or control over the seized substance.
For the Respondent
- Opposed bail on grounds that the statutory conditions under Section 37 have not been met.
- Emphasized that the Tehsildar’s report confirms the accused’s possession of the hut where the contraband was found.
- Argued that the testimony of official witnesses (ED and police) is sufficient without corroboration by independent local witnesses, citing Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627 and State of H.P. v. Pardeep Kumar (2018) 13 SCC 808.
- Relied on Narcotics Control Bureau v. Mohit Aggarwal (2022) 18 SCC 374 and State of Tripura v. Mijanur Rahaman (2024 SCC OnLine Tri 447) to assert that prolonged custody and filing of charge sheet are not valid grounds for bail under Section 37.
- Stressed that the Court must not pre-judge the evidence at the bail stage and must uphold the statutory embargo unless the accused demonstrates reasonable grounds to believe he is not guilty.
Relief Sought
The applicant seeks bail on the grounds of prolonged incarceration, lack of credible evidence linking him to the contraband, and the absence of conscious possession. He requests release on personal bond with or without sureties.
The Legal Issue
Whether the prolonged period of incarceration and the failure of prosecution witnesses to directly implicate the accused constitute sufficient grounds to override the statutory embargo under Section 37 of the NDPS Act, thereby permitting bail despite the absence of reasonable grounds to believe the accused is not guilty.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel argued that the prosecution’s case is built on circumstantial evidence and the testimony of officials who were not present at the time of seizure. The absence of independent local witnesses, the questionable credibility of PW-2, and the fact that the contraband was allegedly recovered from government land collectively undermine the prosecution’s claim of conscious possession. Reliance was placed on Union of India v. Vigin K Varghese and Narcotics Control Bureau v. Mohit Aggarwal to assert that long incarceration, especially when the trial is delayed, can be a relevant factor in bail decisions. The counsel contended that Section 37’s embargo does not apply where the prosecution fails to establish a prima facie case of possession or control.
For the Respondent/State
The Public Prosecutor countered that the statutory requirements under Section 37 are strict and must be satisfied before bail can be granted. The Court cannot substitute its opinion for that of the trial court by evaluating evidence at the bail stage. The Tehsildar’s report confirms the accused’s possession of the hut, and the testimony of official witnesses is sufficient under settled law. The Supreme Court in Mohit Aggarwal and Rizwan Khan has clearly held that delay and filing of charge sheet are not grounds for bail. The State emphasized that the accused has not demonstrated any reasonable grounds to believe he is not guilty, as required under Section 37(1)(b)(ii).
The Court's Analysis
The Court undertook a detailed review of the statutory framework under Section 37 of the NDPS Act, which imposes a stringent condition for bail: the accused must demonstrate reasonable grounds to believe he is not guilty of the offence and is unlikely to commit any offence while on bail. The Court noted that the Supreme Court in Narcotics Control Bureau v. Mohit Aggarwal (2022) 18 SCC 374 has clarified that "reasonable grounds" must mean credible and plausible grounds, not mere speculation or procedural delay.
"The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."
The Court further relied on its own coordinate bench’s judgment in State of Tripura v. Mijanur Rahaman (2024 SCC OnLine Tri 447), which held that the Court at the bail stage is not required to determine guilt or innocence, but only to assess whether there are reasonable grounds to believe the accused is not guilty. The Court observed that the prosecution has adduced seven witnesses, including the recovery of 66 kg of ganja from a structure occupied by the accused, as confirmed by the Tehsildar’s report. The fact that PW-2 was not a local resident does not invalidate her testimony, as she was present at the scene as an independent witness summoned by the ED.
The Court rejected the argument that recovery from government land negates possession, noting that the Tehsildar’s report explicitly states the accused was in occupation of the hut. The Court also dismissed the contention that lack of corroboration by local witnesses renders the prosecution case weak, citing Rizwan Khan v. State of Chhattisgarh, which holds that official witness testimony is not rendered invalid due to absence of independent witnesses.
The Court concluded that the applicant has not discharged the burden under Section 37. The mere passage of time, even 311 days, cannot override the statutory embargo unless the accused demonstrates credible grounds to believe he is not guilty - a threshold not met here.
The Verdict
The bail application was dismissed. The accused, Sri Bishu Kumar Tripura, shall remain in judicial custody. The Court directed the Learned Trial Court to proceed with the trial expeditiously, with the next hearing scheduled for 07.04.2026. The record was sent back to the Special Judge, and the CD was to be returned to the Investigating Officer through the Public Prosecutor.
What This Means For Similar Cases
Bail Under NDPS Act Requires More Than Delay
- Practitioners must understand that prolonged custody alone is insufficient to invoke bail under Section 37 of the NDPS Act.
- Courts will not grant bail merely because the trial is delayed or the charge sheet has been filed.
- The burden remains on the accused to demonstrate credible, plausible grounds to believe he is not guilty - not just procedural irregularities.
Official Witness Testimony Is Sufficient Without Independent Corroboration
- The testimony of ED and police officials, even if not corroborated by local residents, is legally valid under settled precedent.
- Non-examination of independent witnesses is not fatal to the prosecution case, as held in Pardeep Kumar and Rizwan Khan.
- Defence counsel must focus on substantive contradictions in official testimony, not procedural gaps.
Possession Is Determined by Occupation, Not Title
- Recovery from a structure occupied by the accused, even if not formally owned, establishes possession for the purposes of Section 20(b)(ii)(c).
- Tehsildar’s reports confirming occupation are decisive at the bail stage.
- Arguments based on land ownership or government status are unlikely to succeed unless the accused proves exclusive possession by a third party.
