Bail granted where recovery from bag lying nearby lacks conscious possession and quantity is below commercial threshold.

The applicant, Kishan, was apprehended on June 23, 2025, alongside a co-accused near Rishikesh Railway Station.

A search led to the recovery of 159 tablets of Lorazepam (totaling 31.8 grams) found inside a blue bag lying beside the two individuals.

He was charged under Sections 123, 305(B), 3(5), and 317(2) of the Bharatiya Nyaya Sanhita (BNS) and Sections 8/22 of the NDPS Act.

The prosecution alleged the applicant was identified through CCTV footage offering drugged drinks to victims on a train.

The applicant argued the bag was not in his "conscious possession" as it contained no personal items linking him to it.

The applicant had been in custody since June 24, 2025.

1. Whether the recovery of the psychotropic substance from a bag lying near the applicant constitutes "conscious possession" under the NDPS Act.

2. Whether the applicant is entitled to bail considering the quantity of the recovered substance and the principle of parity with the co-accused.

The court primarily applied Section 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act related to the possession of psychotropic substances and Section 37 of the NDPS Act, which provides stringent conditions for bail in cases involving commercial quantities.

The court relied on the doctrine of "conscious possession," which requires the prosecution to show the accused had knowledge and control over the contraband.

The court considered the principle of parity, noting the earlier grant of bail to co-accused Pratap Singh Kushwah on May 13, 2026.

The court reasoned that since the blue bag containing the tablets was merely lying beside the applicant and lacked any identifying items, the element of "conscious possession" by the applicant was not prima facie established.

The court observed that the 31.8 grams of Lorazepam recovered fell below the "commercial quantity," thereby rendering the strict dual-condition limitations of Section 37 NDPS Act inapplicable.

The court noted that while the applicant had a criminal history, he had not been convicted in those cases and had secured bail in his previous NDPS matter.

Given that the trial had not seen any witness examinations since the 2025 chargesheet and that a similarly situated co-accused was already on bail, the court found the applicant eligible for release.

The bail application was allowed, and the applicant was ordered to be released upon executing a personal bond and two reliable sureties, subject to conditions including restrictions on foreign travel, cooperation with the investigation, surrender of passport, and a prohibition against tampering with evidence.