Bar On Bail Under Section 37 NDPS Act Lifted Where Co-Accused Acquitted On Same Evidence: Gauhati High Court
The Gauhati High Court granted bail to an NDPS accused after holding that, once the co-accused in the same case (tried separately) had been acquitted and such findings had not been disturbed in appeal, the Court was bound to proceed on the basis that those findings were valid for the purpose of bail, thereby satisfying the twin conditions under Section 37 of the NDPS Act.Justice Sanjeev...
The Gauhati High Court granted bail to an NDPS accused after holding that, once the co-accused in the same case (tried separately) had been acquitted and such findings had not been disturbed in appeal, the Court was bound to proceed on the basis that those findings were valid for the purpose of bail, thereby satisfying the twin conditions under Section 37 of the NDPS Act.
Justice Sanjeev Kumar Sharma, presiding over the case, 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.”
“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 further held.
As per the factual matrix of the case, the petitioner was arrested in 2020 in connection with an NDPS case under Sections 8(c)/20(b)(C)(ii)/29 of the NDPS Act, following interception of a truck at Baihata Chariali from which contraband was allegedly recovered. After filing of complaint, the case was later split up insofar as the present petitioner was concerned. During this period, the other accused persons faced trial and were acquitted, while the petitioner was separately tried in another NDPS case in Bihar, in which he was also acquitted.
Before the High Court, the petitioner sought bail, inter alia, on the ground that the co-accused in the same case had already been acquitted and that he had undergone prolonged incarceration. The NCB opposed the plea, contending that parity could not be claimed and that the trial against the petitioner had not yet commenced.
After considering the rival submissions, the High Court held, “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.”
Allowing the application, the Court concluded, “In view of the above discussion, the prayer for bail is allowed.”
The petitioner was directed to be released on bail on furnishing a bond of Rs. 1,00,000 with two local sureties, subject to the condition that he shall regularly participate in trial, if it commences, and shall not influence or intimidate witnesses.
Case: Md. Kari alias Md. Jiyauddin v Union of India,
Case No.: Bail Appln./3736/2025