Mere Presence is Not Conspiracy: Kerala High Court Grants Bail in Ganja Case Where Intermediate Quantity Alone Recovered from Accused

"Rigour of Section 37 NDPS Act Not Attracted When Quantity Recovered From Applicant Is Only Intermediate" – Kerala High Court granting bail to a man arrested under the NDPS Act after finding that the quantity of ganja recovered from him was only of an intermediate nature. Justice Dr. Kauser Edappagath held that in the absence of concrete evidence to establish criminal conspiracy with a co-accused from whom a commercial quantity was seized, the statutory bar under Section 37 of the NDPS Act would not apply.

The judgment underscores a critical nuance in NDPS jurisprudence: individual liability must be determined based on possession and evidence of conspiracy, and not merely from joint presence at the scene.

Intermediate Quantity Alone Recovered – Section 37 NDPS Act Not Applicable in Absence of Proof of Conspiracy

The petitioner, Vadivelu (Accused No.2), was arrested on 7th August 2025 along with Accused No.1 near the Palakkad Junction Railway Station, where the police seized a total of 24.301 kilograms of ganja from the two accused persons. Of this, 10.188 kilograms were allegedly recovered from Vadivelu, while 14.113 kilograms were recovered from his co-accused.

The prosecution charged both under Section 20(b)(ii)(C) read with Section 29 of the NDPS Act, 1985, citing their alleged joint possession of a commercial quantity of contraband. However, the Court carefully examined the case diary, the final report, and submissions from both sides before concluding that Vadivelu’s personal possession amounted only to an intermediate quantity, and there was no sufficient evidence to show he acted in conspiracy with the co-accused.

Justice Edappagath observed, “In these circumstances, I am of the view that the rigour of Section 37 of the NDPS Act cannot be attributed against the applicant, inasmuch as the quantity seized from his possession is only intermediate quantity.”

“Standing Together Is Not Criminal Conspiracy”: Court Rejects Joint Possession Without Corroborative Evidence

The prosecution had argued that both accused travelled to Odisha together to procure the ganja and therefore shared culpability for the entire contraband. However, the Court found the claim unsubstantiated.

The investigation revealed no supplier could be identified and that Call Detail Records (CDRs) offered no useful information. Though authorities had requested travel details from airport authorities, no material was available at the time of hearing to conclusively prove any conspiracy or joint action.

Justice Edappagath emphasized, “Apart from the fact that the applicant and accused No.1 were found standing together at the Railway Station, in the investigation conducted, there was nothing on record to suggest that there was any conspiracy between them.”

The Court relied on the decision in Nadeem Ahamed v. State of West Bengal, 2025 KHC OnLine 6704, where it was held that when only intermediate quantity is recovered and there is no proof of conspiracy, the bar under Section 37 does not apply.

Custody Since August 2025 – Continued Detention Held Unnecessary Despite Past Offences

The Court also considered that Vadivelu had been in judicial custody since 7th August 2025, and the investigation was substantially complete. While acknowledging the petitioner’s prior involvement in four NDPS cases, Justice Edappagath noted that two were only for consumption, and the remaining involved small quantities.

The Court reiterated that criminal antecedents alone cannot justify denial of bail when the statutory bar under Section 37 NDPS Act is inapplicable.

Finding no compelling reason to continue detention, the Court granted bail, noting that, “As stated above, the applicant has been in judicial custody since 07.08.2025. For these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose.”

Bail Granted with Stringent Conditions

Bail was allowed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with multiple conditions.

The order makes it clear that while courts remain cautious in NDPS cases, the constitutional rights of the accused cannot be overridden in the absence of evidence linking them to a commercial quantity or a conspiracy.

Date of Decision: 27 January 2026