Merely Driving Car With Contraband Not 'Possession' Under NDPS Act, No Direct Nexus: Calcutta High Court Grants Bail

The Calcutta High Court has granted bail to an accused in an NDPS case, holding that mere driving of a vehicle from which contraband is recovered, without any recovery from the accused or prima facie material showing control over the seized substance, does not amount to “possession” so as to attract the rigours of Section 37 of the NDPS Act. Justice Sabyasachi Bhattacharyya sitting at the Port Blair circuit bench observed that although the concept of possession under the Act is not confined to physical recovery from the person of the accused, there must at least be prima facie material indicating that the accused had control over the contraband, and merely driving a car from which recovery is made from a passenger does not satisfy this requirement.The petitioner contended that no contraband was recovered from him and that the only article seized from his possession was a mobile phone, while the alleged narcotic substance was recovered from a co-passenger. It was further argued that none of the co-accused had implicated him, his role was limited to driving the vehicle owned by his father, he had no criminal antecedents, and he had already spent about 196 days in custody. It was also highlighted that although the chargesheet had been filed on November 6, 2025, none of the 29 prosecution witnesses had been examined, indicating that the trial was unlikely to conclude soon. The State opposed the bail plea by contending that the petitioner, being the driver of the private vehicle carrying contraband, was in constructive possession of the seized material and that the bar under Section 37 of the NDPS Act applied, particularly in cases involving commercial quantity.Upon considering the submissions, the Court noted from the seizure list that no contraband had been recovered from the petitioner and that his alleged involvement was limited to driving the vehicle. The Court held that while possession under the NDPS Act may extend beyond physical custody, it must still be established prima facie that the accused had some degree of control over the seized material. In the absence of any direct material connecting the petitioner to the contraband, the Court found that the rigours of Section 37 could not be invoked mechanically. It further held that even if Section 37 were assumed to apply, the twin conditions under Section 37(1)(b) stood satisfied, as there were reasonable grounds to believe that the petitioner was not guilty and was not likely to commit any offence while on bail.Taking into account the absence of criminal antecedents, the prolonged period of custody, and the delay in commencement of trial, the Court allowed the bail application and directed that the petitioner be released on bail upon furnishing a bond of ₹10,000 with two sureties of like amount, subject to conditions including restriction on leaving the territorial jurisdiction without prior permission, mandatory fortnightly reporting to the local police station, and a prohibition on tampering with evidence or influencing witnesses.Case: Saw Herald vs The StateCase Number: CRM (NDPS) 5 of 2026Click here to read order

Merely Driving Car With Contraband Not 'Possession' Under NDPS Act, No Direct Nexus: Calcutta High Court Grants Bail

Srinjoy Das

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Merely Driving Car With Contraband Not 'Possession' Under NDPS Act, No Direct Nexus: Calcutta High Court Grants Bail

Srinjoy Das

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