NDPS | Extended Custody Unnecessary Where Seizure Is Intermediate and Investigation Concluded: Kerala High Court

Kerala High Court granted bail to Jansheer A.J., who faced charges under Sections 20(b)(ii)(A) and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) after contraband substances were allegedly seized from his motorcycle. Justice C.S. Dias determined that continued custody was unnecessary, given the intermediate quantity of drugs involved and the completion of the investigation.

The case began on April 25, 2024, when Jansheer was involved in a motorcycle accident and admitted to the hospital. Three days later, on April 28, police recovered 3.28 grams of MDMA, 0.330 grams of hashish oil, and 0.450 grams of ganja from his vehicle during an inspection. Jansheer was remanded into judicial custody on June 16, 2024, with the police charging him with possession and potential trafficking of narcotics under the NDPS Act.

Counsel for Jansheer argued that he was falsely implicated by the investigating officer due to personal animosity, emphasizing that the seized substances did not belong to him. It was also contended that, despite Jansheer’s prior arrest in a similar case, the quantity of drugs in the present case was intermediate, thus exempting him from the strict bail conditions of Section 37 of the NDPS Act. Additionally, the defense pointed out that Jansheer had already been in custody for nearly five months, the investigation had concluded, and the charge sheet had been filed, making further detention excessive.

The prosecution opposed the bail request, asserting that there was substantial evidence linking Jansheer to the seized contraband. Highlighting his prior offense, they argued that his release posed a significant risk of recidivism. However, they did not dispute that the substances in question amounted to an intermediate quantity, which has a less severe implication under the NDPS Act.

Justice Dias underscored that, because the seized contraband was of intermediate quantity, the mandatory conditions under Section 37 NDPS Act for bail—typically applied to commercial quantities—were inapplicable in this case. “The rigour under Section 37 of the Act does not apply to the facts of the case,” the judge noted, emphasizing that intermediate quantities permit more lenient considerations for bail.

The court acknowledged Jansheer’s prior offense but held that this alone could not justify continued detention without fresh incriminating evidence. Given his nearly five-month custody, completed investigation, and filed charge sheet, the court found no compelling reason to extend his detention. Consequently, Jansheer was granted bail with stringent conditions, including regular appearances in court, a prohibition against influencing witnesses or tampering with evidence, and a bond of ₹1,00,000 along with two solvent sureties.

The investigating officer retains authority to investigate further as per the Supreme Court’s guidance in Sushila Aggarwal v. State (NCT of Delhi), allowing evidence collection while the accused is out on bail.

The High Court’s decision in B.A. No. 5198 of 2024 illustrates a balanced approach to bail in narcotics cases involving intermediate quantities, underscoring that prolonged custody should not apply where the investigation is complete, and strict statutory conditions are not triggered. This ruling reinforces that personal liberty should not be curtailed unnecessarily, even in cases involving repeated offenses, provided the legal requirements for bail are met.

Date of Decision: November 7, 2024