Anticipatory bail is ordinarily unavailable to absconders facing warrants and proclamation absent exceptional circumstances.

The petitioner sought anticipatory bail in Dharmanagar GRP Station Case No. 1 of 2024, registered under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, concerning the alleged recovery of 61.580 kg of ganja from electric control boxes booked through Dharmanagar railway station.

The consignment named Priyatosh Debnath as consignor and Aditya Kumar Jha as consignee. During verification, Priyatosh allegedly informed the police that the actual owner of the consignment was the petitioner, Pallab Das.

The police subsequently filed a charge-sheet against the petitioner and Priyatosh under Sections 20(b)(ii)(C)/29 NDPS Act, showing the petitioner as absconding; Aditya Kumar Jha was proposed for discharge for want of sufficient evidence.

The petitioner’s earlier application for anticipatory bail, AB No. 47 of 2024, had been rejected by a Coordinate Bench on 4 October 2024, principally because the case involved commercial quantity and required cautious consideration under Section 37 of the NDPS Act.

Warrants, proclamation and attachment proceedings were thereafter issued against the petitioner, but he did not surrender or appear before the trial court.

The petitioner argued that the only material against him was the alleged statement of a co-accused and that the CDR/SDR materials relied upon by the prosecution had not been filed with the charge-sheet.

1. Whether the petitioner could be granted anticipatory bail when the alleged incriminating material consisted primarily of a co-accused’s statement identifying him as the owner of the consignment?

2. Whether the petitioner’s continued abscondence, issuance of warrant, proclamation and attachment orders barred or substantially restricted the grant of anticipatory bail?

3. Whether the petitioner could maintain a second application for anticipatory bail after rejection of his earlier application on substantially similar facts?

4. Whether anticipatory bail could be granted in a case involving commercial quantity of narcotics without satisfying the requirements of Section 37 of the NDPS Act?

The Court applied Sections 20(b)(ii)(C) and 29 of the NDPS Act to the alleged possession and conspiracy relating to commercial quantity of ganja, together with the stringent twin conditions under Section 37, requiring the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is unlikely to commit an offence while on bail.

Under Section 19 of the Bharatiya Sakshya Adhiniyam, 2023, an admission is ordinarily provable against its maker or representative in interest, but not against a co-accused; an admission of one accused cannot ordinarily be used against another unless it amounts to a legally admissible confession.

Relying on Tofan Singh v. State of Tamil Nadu , as reiterated in State by NCB, Bengaluru v. Pallulabid Ahmad Arimutta , the Court recognised that a confessional statement recorded under Section 67 of the NDPS Act is inadmissible at trial.

The Court also applied the principle in Srikant Upadhyay v. State of Bihar that anticipatory bail is ordinarily unavailable to a person against whom a warrant or proclamation has been issued and who continues to abscond, although relief may be granted in extreme and exceptional circumstances in the interest of justice.

It further noted that a proclamation does not create an absolute statutory bar in every case, but the jurisdiction must be exercised cautiously and only in exceptional circumstances, as recognised in Asha Dubey v. State of Madhya Pradesh .

The Court observed that, prima facie, the principal material connecting the petitioner to the consignment was Priyatosh’s statement that the goods belonged to Pallab Das.

Applying Section 19 of the BSA and the principles concerning admissions and confessions, the Court held that an admission is generally usable against its maker, not against a co-accused, unless it qualifies as an otherwise admissible confession.

The Court also noted that the CDR, SDR and CAF materials allegedly showing communications between the petitioner, the consignor and the consignee were not filed with the charge-sheet, despite being available in the case diary; it directed the Superintendent of Police to examine this omission.

Nevertheless, the evidentiary observations were expressly limited to consideration of bail and were not to affect the trial.

The decisive considerations were that the petitioner had already unsuccessfully sought anticipatory bail, had remained absconding for a prolonged period, and had failed to respond even after issuance of warrant, proclamation and attachment orders.

The Court found no explanation for his continued non-appearance and held that the case did not disclose the extreme or exceptional circumstances necessary to justify anticipatory bail to an absconder. The commercial quantity alleged also attracted the heightened scrutiny mandated by Section 37 of the NDPS Act.

The petitioner was permitted to surrender before the learned Special Judge and apply for regular bail, which was directed to be considered in accordance with law and the materials produced by the prosecution.

Interim protection, if any, was vacated; the records and case diary were directed to be transmitted to the trial court, and the Superintendent of Police was directed to examine the Investigating Officer’s failure to file the CDR/SDR materials with the charge-sheet.