Reasonable Grounds Under Section 37 of NDPS Act Cannot Be Equated with Proof; They Must Reflect More Than Suspicion, But Less Than Conviction: J&K HC

“Mandatory Procedural Safeguards Cannot Be Sacrificed at the Altar of Crime Severity”— High Court of Jammu & Kashmir and Ladakh at Srinagar, in a significant pronouncement granted bail to a young accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, despite charges involving commercial quantity of Codeine Phosphate. Justice Mohd Yousuf Wani held that mere gravity of the charge cannot override the constitutional commitment to personal liberty, especially where trial is delayed, evidence is contradictory, and mandatory procedural safeguards have been breached.

The petitioner had been in judicial custody for more than two-and-a-half years without conclusion of trial, during which less than half of the 21 listed witnesses had been examined. Citing this prolonged incarceration and material contradictions in the prosecution evidence, the Court remarked: “It is believed that the trial of the case may take much more time to conclude”, rendering the continued detention of the accused unjustified in the eyes of the Constitution.

“Presumption of Innocence is Not a Mere Legal Fiction”—Court Dissects the Threshold of ‘Reasonable Grounds’ under Section 37 NDPS Act

The crux of the legal debate centered around the interpretation of Section 37 of the NDPS Act, which imposes a stringent bar on bail in cases involving commercial quantities of contraband. The prosecution, citing recovery of 50 bottles of “Myberry” (each containing 100 ml of Codeine Phosphate), invoked this bar and opposed the grant of bail on grounds of seriousness of the offence, possible societal impact, and alleged disclosures by the petitioner leading to further arrests.

Justice Wani, however, cautioned that courts must not confuse suspicion with certainty when applying the statutory bar. He elaborated:

“The words ‘reasonable grounds’ cannot be read to mean ‘proved’… Such an interpretation would, in my opinion, set at naught the power vested in a court to grant bail pending trial.”

The Court underscored that “reasonable grounds” must amount to more than mere conjecture or suspicion and must reflect a level of evidentiary satisfaction capable of enabling “a person of ordinary prudence to believe that the accused is or is not guilty.”

While acknowledging that the NDPS Act was enacted with the objective of curbing the drug menace through stringent measures, the Court firmly reiterated that “liberty of an individual must not be curtailed by arbitrary or whimsical actions of the police or other authorities.”

“Bail Is the Rule, Jail the Exception”—Court Says Prolonged Pre-Trial Detention Cannot Replace Conviction

Referring to landmark decisions such as Sanjay Chandra v. CBI, Gur Baksh Singh Sibbia v. State of Punjab, and Siddharam Mhetre v. State of Maharashtra, the Court emphasized the principle that pre-trial incarceration cannot be a substitute for punishment. The judgment quoted the Supreme Court’s caution that:

“The object of bail is neither punitive nor preventive… Detention in custody pending trial has a substantial punitive content.”

Justice Wani declared that the continued incarceration of the petitioner, who had no prior criminal record, in a case where witness testimonies are inconsistent and co-accused has already been granted bail, would result in grave injustice. He warned against transforming bail hearings into mini-trials, stating:

“The consideration at the time of taking up of the bail application for disposal is different from the consideration adopted at the end of the trial… Courts would be exceeding their limit of functions if they engage themselves in discovering the guilt or innocence of the accused at this stage.”

The Court also observed that procedural violations committed during investigation—particularly under Sections 52(1) and 57 of the NDPS Act—were not mere irregularities but mandatory safeguards, failing which the case’s foundation becomes questionable.

“Parity Cannot Be Denied to One Accused When Co-Accused Has Already Walked Free”—Court Finds No Justification for Disparate Treatment

Another compelling ground that swayed the Court was the principle of parity. It was undisputed that one of the co-accused, Saleem Yousuf, had already been granted bail on January 16, 2025 by the same Court. The prosecution could not demonstrate how the petitioner’s role was significantly distinguishable.

Justice Wani held:

“The petitioner stands on parity with the co-accused who has already been enlarged on bail… Denial of bail in such a situation would be discriminatory and unjust.”

The Court also rejected the argument that release of the petitioner would pose a risk to society or encourage drug offences, pointing out that “no cogent material has been placed before the Court to substantiate any apprehension of tampering with evidence or absconding.”

Constitutional Rights Are Not Suspended During Trial—Court Orders Release with Stringent Conditions

Concluding that continued custody of the petitioner amounted to pre-trial punishment in violation of Articles 19 and 21 of the Constitution, the High Court admitted him to regular bail, subject to stringent conditions to ensure presence at trial and prevent misuse of liberty.

Justice Wani ruled: “The petitioner shall be released upon furnishing personal bond of ₹1,00,000 and two sureties of ₹50,000 each from among his relatives… Subject to strict compliance with conditions including regular appearance, no tampering with witnesses, no travel outside J&K without permission, and no repetition of offence.”

The Court empowered the trial court to invoke Sections 491 and 492 of the BNSS (corresponding to Sections 446 and 446A of the CrPC) in the event of breach of any bail conditions.

In a legal landscape where courts often tread cautiously in NDPS cases, this decision stands out for its nuanced appreciation of constitutional liberties, judicial discretion, and the need to safeguard the rights of the accused during the prolonged pendency of trials.

Date of Decision: 27.10.2025