Conspiracy Under NDPS Makes All Accused Equally Liable—Recovery from One is Recovery from All: J&K High Court Dismisses Bail in Codeine Trafficking Case

“Financing Illicit Trafficking Attracts the Rigour of Section 37 NDPS—Long Incarceration No Justification for Bail Where Commercial Quantity Is Proven” - In a detailed and precedent-backed ruling High Court of Jammu & Kashmir and Ladakh at Jammu, per Justice Sanjay Dhar, rejected the bail plea of Mohd. Maqbool, an accused in a high-stakes narcotics case involving large-scale trafficking of Codeine-based cough syrup and psychotropic tablets. The Court held that Section 37 of the NDPS Act imposes a statutory bar on the grant of bail in cases involving commercial quantities of contraband, and in particular where Section 27-A (financing illicit traffic) is invoked.

“The bar contained in Section 37 of the NDPS Act is attracted to the case of the petitioner. The offences alleged involve not only commercial quantity but also financing of illicit trafficking—two of the gravest forms of drug offences,” observed the Court, while holding that the petitioner had failed to meet the mandatory twin conditions required for bail under the NDPS regime.

“Petitioner Deemed to Be in Possession of Entire Contraband—Once Conspiracy Is Framed Under Section 29, Individual Quantity Becomes Irrelevant”

The Court placed emphasis on the invocation of Section 29 of the NDPS Act, which deals with criminal conspiracy to commit offences under the Act. Justice Dhar held that the entire quantity recovered from co-accused must be read against the petitioner as well, thereby bringing the case squarely within the definition of 'commercial quantity'.

“Whatever quantity of contraband has been recovered in the present case from the petitioner or from co-accused Rayees Ahmed Bhat, it has to be assumed that the same has been recovered from all accused persons, once Section 29 NDPS Act is invoked,” the Court held.

The total recovery in the case included 317 bottles of Codeine-based cough syrup, 1000 Tapentadol tablets, 900 Alprazolam tablets, Lorazepam and Clobazam tablets, and other Schedule H substances—all considered commercial quantity under NDPS rules.

“Low Codeine Percentage Argument Is Academic—Section 29 and Cumulative Recovery Trump Analytical Hair-Splitting at Bail Stage”

The petitioner had attempted to argue that the Codeine Phosphate in the seized cough syrup was below 2.5%, and thus fell outside the NDPS’s definition of “manufactured drugs” under Section 2(xi). The Court dismissed this contention as irrelevant at the bail stage, given the cumulative seizure and the proven conspiracy among accused.

“Going into the question of whether the percentage of Codeine Phosphate found in the drugs seized from the petitioner would take out the said drugs from the purview of ‘manufactured drugs’ would be an academic exercise, which this Court would not like to undertake at this stage,” the Court remarked.

Even assuming for argument’s sake that the Codeine content was below the statutory threshold, the totality of the recovery, when read in light of Section 29, meant that commercial quantity was still clearly established.

“Bail Cannot Be Granted Where Financing of Illicit Drug Trade Is Alleged—Section 27-A Triggers Higher Threshold of Judicial Scrutiny”

The Court further noted that the petitioner had been charged under Section 27-A, which punishes not only those who traffic drugs but also those who finance or harbour such activities. This, the Court observed, is a serious charge that strengthens the bar to bail under Section 37.

“Besides possession of contraband, the petitioner is also stated to be involved in the offence under Section 27-A of the NDPS Act. Thus, it cannot be stated that there are reasonable grounds for believing that he is not guilty,” Justice Dhar held.

The statement under Section 67 of the NDPS Act made by the petitioner also revealed his active role in delivering 150 bottles of Codeine syrup to a co-accused, and admitted his long-standing connection with a pharmaceutical supplier implicated in the drug ring.

“Mere Long Incarceration Does Not Dilute Section 37 NDPS Bar—Liberty Must Yield to Larger Public Interest in Grave Narcotic Offences”

Despite the petitioner’s argument that he had been in custody for over one year, the Court refused to grant bail, pointing to the seriousness of the offence, the early stage of trial, and the clear evidentiary foundation of the charges.

“At this stage, merely because the petitioner has been incarcerated for the last more than one year, bail cannot be granted in his favour. The trial has just begun, and the material on record indicates a deep-rooted conspiracy,” the Court held, echoing the Supreme Court's emphasis on public interest in Kailashben Mahendrabhai Patel v. State of Maharashtra, 2024 SCC OnLine SC 2621.

The Court clarified that unless both conditions under Section 37(1)(b)—(i) the court must be satisfied that there are reasonable grounds for believing the accused is not guilty, and (ii) the accused is not likely to commit another offence—are met, bail cannot be granted in NDPS cases involving commercial quantity or financing.

“Charges Are Framed, Not Challenged—Prima Facie Involvement Is Legally Presumed at Bail Stage”

In reinforcing the standard of judicial scrutiny at the bail stage, the Court also highlighted that the trial court had already framed charges against the petitioner on 13 December 2024 and the same remained unchallenged.

“We have to proceed on the basis that the petitioner is prima facie found to have been involved in the said offences. Once charges are framed and not questioned, the bar under Section 37 assumes full effect,” the Court observed, underlining the limited scope of bail adjudication under the stringent NDPS scheme.

Bail Denied, Trial to Be Expedited

Concluding the matter, Justice Sanjay Dhar held that the petitioner had failed to show any grounds for relief under Section 483 of the BNSS, 2023, or to satisfy the statutory conditions of Section 37 of the NDPS Act. The bail application was accordingly dismissed, with a direction to the Special Judge NDPS, Jammu, to expedite trial proceedings.

“I do not find any merit in this petition. The same is, accordingly, dismissed. However, the learned trial court is directed to expedite the trial of the main case,” the Court concluded.

Date of Decision: 18 October 2025