Driving A Car In Which Co-Passenger Carries Contraband Does Not Make Driver Guilty Under NDPS Act: Calcutta High Court Grants Bail

"Merely driving a car, while the recovery was made from the passenger, does not entail such a conclusion" of constructive possession, Calcutta High Court (Circuit Bench at Port Blair) has granted bail to a man accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, holding that merely driving a vehicle from which contraband was recovered from a co-passenger does not, by itself, establish that the driver was in control of the seized material — a prerequisite for the stringent bail restrictions under Section 37 of the NDPS Act to apply.

Justice Sabyasachi Bhattacharyya, holding that the prosecution had produced no material to directly connect the petitioner to the alleged crime, was satisfied that there were reasonable grounds to believe that the petitioner was not guilty of the offence and was not likely to commit any offence while on bail.

Constructive Possession Requires Prima Facie Control — Driving Alone Is Not Enough

The prosecution argued that since the petitioner was driving a private car — and not a commercial vehicle — his knowledge of and involvement in the crime could not be ruled out, and that he could be said to be in constructive possession of the contraband recovered from the passenger.

The Court rejected this argument with clarity.

"Although the expression 'possession' in respect of such offences may not be limited to recovery from the person of the accused, but at least it has to be established prima facie, for the rigours of Section 37 to apply, that the petitioner in some manner was in control of the seized material. Merely driving a car, while the recovery was made from the passenger, does not entail such a conclusion."

The Court noted that no contraband whatsoever was found on the petitioner, that the only item seized from him was a mobile phone, that none of the co-accused had named him as a participant in the crime, and that on the face of it, there was no direct involvement of the petitioner in the offence.

Section 37 Cannot Be Read In Isolation From Underlying Offence

Addressing the State's reliance on Section 37(1)(b) of the NDPS Act to urge that its rigorous bail conditions applied by virtue of the commercial quantity of contraband allegedly involved, the Court held that this provision cannot be read in isolation from the offences actually made out on the facts of the case.

"In the complete absence of any material to directly connect the petitioner to the alleged crime, at least till this stage, the benefit of doubt should go to the accused."

The Court held that when there is a complete absence of direct nexus between the petitioner and the seized material, the rigours of Section 37 are not prima facie attracted. Going further, it held that even if Section 37 were assumed to apply, the ingredients of Clause (ii) of Section 37(1)(b) were satisfied on the facts of the present case — meaning the Court was, in any event, satisfied that there were reasonable grounds to believe the petitioner was not guilty and would not reoffend.

196 Days In Custody, No Witness Examined — Prolonged Incarceration A Relevant Factor

The Court also took note of the petitioner's prolonged pre-trial detention of approximately 196 days, the absence of any prior criminal record, and the stalled state of the trial — with none of the 29 cited prosecution witnesses having been examined despite the chargesheet having been filed months earlier. These circumstances created a serious doubt as to whether the trial would be concluded in the near future, making continued incarceration disproportionate to the petitioner's alleged role.

Bail Granted With Conditions

The Court accordingly allowed the bail application and directed that the petitioner be released on furnishing a bond of Rs. 10,000 with two sureties of like amount, one of whom must be local, to the satisfaction of the Chief Judicial Magistrate, Port Blair. The petitioner was directed not to leave the territorial jurisdiction of North and Middle Andaman District without prior leave of the jurisdictional court, except for attending the trial. He was also required to report to Mayabunder Police Station once every fortnight and was prohibited from contacting, intimidating or inducing witnesses or tampering with evidence during the period of trial.

Date of Decision: April 24, 2026