Bar On Bail Under Section 37 NDPS Act Lifted Where Co-Accused’s Acquittal Findings Remain Undisturbed In Appeal: Gauhati High Court
Sanchayita Lahkar
The Gauhati High Court Single Bench of Justice Sanjeev Kumar Sharma granted bail to an accused booked under the NDPS Act for allegedly transporting a commercial quantity of cannabis concealed in a truck intercepted by the Narcotics Control Bureau. The Court noted that the co-accused from the same seizure were tried separately and acquitted on findings that had not been set aside in appeal and held that the bail court had to proceed on the footing that those findings remained valid for deciding bail. On that basis, the Court treated the statutory twin requirements for bail under Section 37 of the NDPS Act as met and ordered the accused’s release on bail subject to conditions.
On 15 June 2020, the Narcotics Control Bureau received information that cannabis was being transported in a truck expected to reach a highway location near Baihata Chariali the next morning. The truck was intercepted on 16 June 2020, and a concealed cavity behind the driver’s seat was found to contain 36 taped packets; samples tested positive for cannabis on a detection kit, and the seized quantity was recorded as 484.3 kg. Notices were issued and statements recorded under Section 67 of the NDPS Act, after which the accused-petitioner and others were arrested for alleged offences under Sections 8(c), 20(b)(ii)(c) and 29 of the NDPS Act, and a complaint was filed by the NCB.
The proceedings were later split, and the co-accused were tried separately and acquitted, with the trial court noting gaps in chain of custody and an absence of a clear finding in the laboratory report on whether the substance met the statutory definition of “ganja”. The accused-petitioner sought bail under Section 483 BNSS, contending lack of knowledge of the contraband and alleging non-furnishing of written grounds of arrest and non-compliance with safeguards under Sections 50 and 50A CrPC, including issues about notices. The prosecution opposed bail, citing risk of absconding and disputing reliance on the co-accused’s acquittal.
The Court held: “in the absence of a clear and unambiguous finding in the FSL report that the seized substance consisted of flowering or fruiting tops of the cannabis plant, as required under the definition of "ganja" in the NDPS Act, this Court is not satisfied that the prosecution has proved that the seized substance was "ganja" as defined under the NDPS Act.”
The Court observed, “Till such finding is disturbed in appeal, the Court considering the bail application must proceed on the basis that the said findings are valid ones, as in a bail application, this Court cannot go into the correctness or otherwise of such findings. In that view of the matter, as a logical corollary, it would be prudent for the Court to hold that there are reasonable grounds to believe that the petitioner is not guilty of the alleged offence and therefore, the first condition stipulated under Section 37 NDPS Act stands satisfied.”
The Court further held: “As far as the second condition regarding the likelihood of the petitioner indulging in similar offences if granted bail, it is noticed that there was another case against the petitioner in Bihar in which he faced the trial and thereafter, he was acquitted. Hence it cannot be held that the petitioner has criminal antecedents, having been acquitted by a Court of law. There is no other material to come to a finding that the petitioner would being involved in or commit offences of a similar nature if granted the privilege of bail.”
The Court recorded: “In view of the aforesaid findings it is not necessary, for the purpose of disposing of this bail application, to go into the merits of the other contention raised by learned counsel for the petitioner.”
The Court ordered that “the prayer for bail is allowed. The accused-petitioner “shall be released on bail of Rs.1,00,000/- (Rupees One Lakh) with two local sureties of like amount to the satisfaction of learned trial Court” in connection with the case.
“The petitioner shall regularly participate in the trial if one commences and shall not try to influence or intimate the witness in any manner. The bail application stands disposed of.
Advocates Representing the Parties
For the Petitioners: Mr. S. Nawaz, Advocate
For the Respondents: Mr. S.C. Keyal, SC, NCB
Case Title: MD KARI ALIAS MD JIYAUDDIN v. THE UNION OF INDIA.
Neutral Citation: GAHC010254482025.
Case Number: Bail Appln./3736/2025.
Bench: Justice Sanjeev Kumar Sharma.
