Section 37 NDPS bail granted where mere money transfer did not establish conspiracy.

On 16 May 2023, police intercepted a load carrier at Kawari Crossing and recovered approximately 2.10 kg of charas-like substance from the vehicle and its driver, Sajjad Ahmed Mir.

During investigation, the accused disclosed the alleged involvement of other persons, including Mashooq Ahmad Malik and Mudasir Ahmad Malik.

The petitioner, Faisal Ahmad Ganie, was implicated on the basis of call-detail analysis and an alleged police disclosure statement stating that, at his instance, ₹10,000 had been transferred through PW-16 Mohammad Ashraf Mir into the account of co-accused Mashooq Ahmad Malik.

The police filed the challan on 31 October 2023, and the Additional Sessions Judge, Kupwara, framed charges under Sections 8/21, 27A and 29 of the NDPS Act on 26 February 2024.

The petitioner challenged the framing of charges under Section 482 CrPC and simultaneously sought bail under Section 439 CrPC.

By the time the High Court considered the matter, 11 of the 18 prosecution witnesses had been examined, including most material witnesses.

Whether the High Court should exercise jurisdiction under Section 482 CrPC to quash the order framing charges when the trial had substantially progressed and most material witnesses had already been examined?

Whether the petitioner was entitled to bail under Section 439 CrPC despite the applicability of the restrictions under Section 37 of the NDPS Act?

Whether the petitioner’s custodial disclosure statement was legally admissible, and whether the material on record provided reasonable grounds to believe that he was not guilty of the alleged NDPS offences?

The Court considered the inherent jurisdiction under Section 482 CrPC and held that it would not ordinarily examine the legality of an order framing charges at a belated stage where the trial had substantially progressed, leaving the accused to raise such contentions at final disposal.

For bail, Section 37 of the NDPS Act applied because the prosecution alleged involvement in a conspiracy relating to commercial-quantity contraband; therefore, the Court had to be satisfied that there were reasonable grounds for believing that the accused was not guilty and that he was unlikely to commit a similar offence while on bail.

Under Section 23(1) of the Bharatiya Sakshya Adhiniyam, a confession made to a police officer is inadmissible, subject to the proviso permitting proof of so much information as distinctly relates to a fact discovered.

The Court also applied the principle that bail may be granted where the prosecution material, viewed prima facie, does not sufficiently connect the accused with the offence and the risks of witness tampering or reoffending are minimal.

The Court declined to examine the challenge to the framing of charges because the trial had materially advanced, with 11 prosecution witnesses already examined; interference at that stage would be inappropriate, and the petitioner could urge his objections before the trial court at the conclusion of the case.

On bail, although Section 37 of the NDPS Act imposed stringent conditions, the contraband had not been recovered from the petitioner’s possession.

The Court held that the petitioner’s police disclosure was admissible only to the limited extent that it led to discovery of the transfer of ₹10,000; the alleged admission that the transfer was made for procuring charas was prima facie inadmissible under Section 23 of the Bharatiya Sakshya Adhiniyam.

PW-16 merely established that, at the petitioner’s request, he transferred ₹10,000 into the account of the co-accused, while denying knowledge of the petitioner’s involvement in drug trafficking and stating that he did not know the account holder.

Since the petitioner himself had not transferred the money and this was the principal evidence against him, the Court found reasonable grounds to conclude prima facie that he was not guilty for the purpose of bail under Section 37.

The absence of prior drug-trafficking history and the examination of most material witnesses further reduced the risks of reoffending and witness tampering.

The bail application was allowed.

The petitioner was directed to be released on bail upon furnishing a personal bond of ₹1,00,000 with two sureties of the like amount, subject to appearing at every hearing, not leaving the Union Territory of J&K without prior permission, and not intimidating or tampering with prosecution witnesses or evidence.

The Court clarified that its observations would not affect the merits of the trial.