NDPS procedural violations and reliance on a co-accused’s statement justify anticipatory bail despite abscondence.

The petitioner sought pre-arrest bail in Special Case No. 2 of 2015 arising from Tigiria P.S. Case No. 81 of 2015, registered for an offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The prosecution alleged that the petitioner and three others were transporting 40.6 kg of ganja in an Alto car.

While the three co-accused were apprehended, the petitioner allegedly escaped and was subsequently shown as an absconder in the charge-sheet.

The co-accused faced trial and were acquitted by the Trial Court on 28 September 2016; the acquittal had attained finality.

The Trial Court found violations of Sections 52 and 55 of the NDPS Act, including failure to establish safe custody of the seized ganja, proper production before the Magistrate, and integrity of the samples sent for chemical examination.

The petitioner contended that his implication was based on the statements of the co-accused and that, in view of their acquittal and the evidentiary defects, he deserved pre-arrest bail.

1. Whether the petitioner, who had been shown as an absconder and whose implication was allegedly based on co-accused statements, could claim pre-arrest bail on the basis of the acquittal of the co-accused?

2. Whether the Trial Court’s findings regarding violations of Sections 52 and 55 of the NDPS Act, and the consequent doubt regarding the identity and safe custody of the seized contraband, justified directing release of the petitioner on bail despite the restrictions under Section 37(1)(b)(ii) of the NDPS Act?

3. Whether the principles applicable to regular bail could equally inform consideration of an application for anticipatory bail?

The Court applied Section 20(b)(ii)(C) of the NDPS Act, which prescribes punishment for possession or transportation of cannabis involving commercial quantity, and Section 37(1)(b)(ii), which imposes stringent conditions for bail in NDPS cases involving commercial quantity.

Sections 52 and 55 of the NDPS Act require lawful forwarding, disposal, custody, sealing, and sampling of seized articles.

The Court recognised that violation of these safeguards may create a reasonable doubt regarding the identity, integrity, and safe custody of the contraband.

It relied on Udhab Digal v. State of Odisha, ABLAPL No. 1768 of 2025, concerning the significance of procedural safeguards in NDPS search-and-seizure cases.

Serious Fraud Investigation Office v. Aditya Sarda, 2025 SCC OnLine SC 764, for the principle that no straitjacket formula governs anticipatory bail.

State by the Inspector of Police v. B. Ramu, 2024 SCC OnLine SC 4073, and State of M.P. v. Kajad, (2001) 7 SCC 673, regarding the prima facie significance of a charge-sheet.

Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, and State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, regarding the evidentiary limitations of statements of co-accused/confessional statements under the NDPS Act.

Satender Kumar Antil v. CBI, 2023 SCC OnLine SC 452, for the principle that considerations relevant to bail for an accused in custody may apply equally while considering anticipatory bail.

The Court acknowledged that evidence adduced in the trial of the co-accused does not automatically operate to the benefit of an absconding accused, particularly because anticipatory bail is an exceptional remedy.

However, it held that the special safeguards governing seizure and preservation of narcotic substances could not be disregarded merely because the petitioner had not faced trial.

The Trial Court had already found that the prosecution failed to establish compliance with Sections 52 and 55 of the NDPS Act, including safe custody of the seized ganja, proper sampling, and absence of tampering.

These findings resulted in the acquittal of the co-accused, which had become final.

The Court further noted that the petitioner’s implication was admittedly based on the statement of a co-accused, and considered that circumstance in light of Tofan Singh and Samarth Kumar.

Although filing of the charge-sheet ordinarily indicates a prima facie case, the Court found that the Trial Court’s findings materially weakened the prosecution case and were relevant to the bail assessment.

Applying the principle that anticipatory bail cannot be decided by a rigid formula, and that relevant regular-bail considerations may be considered, the Court directed that the petitioner be granted bail upon surrender.

It directed the petitioner to surrender before the competent court within three weeks and ordered that, upon surrender and filing of a bail application, he be released on bail by the Court in seisin on such terms as considered just and proper to secure his presence during trial.

The Court therefore granted conditional protection notwithstanding the petitioner’s status as an absconder, principally because the prosecution case was affected by established violations of Sections 52 and 55 of the NDPS Act and the petitioner’s implication rested on the statement of a co-accused.