Srinagar: Reiterating the stringent bar on bail under Section 37 of the NDPS Act, the High Court of Jammu & Kashmir and Ladakh has held that even in the absence of direct recovery, an accused can be denied bail if circumstantial evidence, such as financial transactions and telephonic contact, establishes a prima facie link to a drug trafficking conspiracy involving commercial quantity.
Justice Sanjay Parihar while dismissing the plea of one MD Monish, accused in a 2024 FIR registered at Police Station Ganderbal under Sections 8/21 and 29 of the NDPS Act, held that the High Court of Jammu & Kashmir and Ladakh has held that even in the absence of direct recovery, an accused can be denied bail if circumstantial evidence, such as financial transactions and telephonic contact, establishes a prima facie link to a drug trafficking conspiracy involving commercial quantity.
The case pertains to an alleged inter-state narcotics network involving procurement and supply of drugs from Delhi to Kashmir.
According to the prosecution, Monish was arrested in Delhi on January 13, 2025, on allegations of conspiring with co-accused persons to facilitate the movement of narcotics into the Kashmir Valley.
The investigation culminated in the recovery of 141 bottles of a codeine-based manufactured drug, each containing 100 ml, totaling 14,100 grams — amount that falls within the definition of “commercial quantity” under the NDPS Act.
Counsel for the petitioner argued that no contraband was recovered from Monish and that his implication rested solely on disclosure statements and alleged monetary transactions, which, it was contended, lack sufficient evidentiary value.
It was further submitted that the trial court failed to appreciate the absence of foundational facts necessary to invoke conspiracy under Section 29 of the NDPS Act.
Opposing the bail plea, the prosecution contended that Monish was an active participant in a well-coordinated drug trafficking chain operating between Delhi and Ganderbal. It relied on call detail records and financial transactions, including transfers of Rs 20,000 and Rs 5,000 made shortly before the recovery, to establish a live and proximate link between the petitioner and the contraband.
After hearing both sides, the bench of Justice Parihar observed that the recovery of commercial quantity attracts the rigours of Section 37 of the NDPS Act, which mandates that bail can only be granted upon satisfaction that there are reasonable grounds to believe that the accused is not guilty.
The court noted that this standard requires more than a prima facie view and calls for substantial probable cause.
The court recorded that despite the absence of recovery from the petitioner, the material on record, including disclosure statements, call detail records, and monetary transactions, prima facie indicated his involvement in the conspiracy.
It emphasized that conspiracy under Section 29 is a substantive offence and can be inferred from surrounding circumstances, as direct evidence is seldom available.
Rejecting the argument regarding lack of possession, the court held that possession under the NDPS Act includes both conscious and constructive possession and is not limited to physical custody.
Taking note that charges have already been framed against the petitioner, the court concluded that the statutory requirements under Section 37 were not satisfied. Accordingly, the bail application was dismissed.
However, the court granted liberty to the petitioner to renew his bail plea in case of any substantial change in circumstances or undue delay in the trial.
