The Calcutta High Court answered that bail under Section 439 CrPC is permissible where no contraband is recovered and the rigour of Article 37 NDPS Act does not apply.
Summary
| Category | Data |
|---|---|
| Case Name | CRM (NDPS) 766 of 2025 of ANIKUL HOQUE @ MANIK @ ANIKUL ISLAM @ MD ANIKUL HOQUE Vs STATE OF WEST BENGAL |
| CNR | WBCHCA0281532025 |
| Decision Date | 19-08-2025 |
| Disposal Nature | ALLOWED |
| Judgment Author | HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE |
| Court | High Court at Calcutta |
| Bench | Single Judge |
| Type of Law | Criminal Law – NDPS Act |
| Questions of Law | Can bail be granted under Section 439 CrPC/Section 483 BNS Sanhita when no contraband was recovered and Article 37 of the NDPS Act is not attracted? |
| Ratio Decidendi |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court |
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| Facts as Summarised by the Court |
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Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts in West Bengal |
What’s New / What Lawyers Should Note
- Bail under NDPS legislation can be granted if no contraband is recovered from an accused.
- Article 37 NDPS Act’s prohibition on bail does not apply where there is no recovery.
- Parity with co-accused already on bail is a valid ground for release.
- Courts will impose stringent conditions to guard against tampering and ensure presence at trial.
Summary of Legal Reasoning
- The petitioner’s name arose only in a co-accused statement; no contraband was seized from him.
- Article 37 NDPS Act bars bail only where contraband is established; here, it is not attracted.
- The High Court exercised discretion under Section 439 CrPC and Section 483 BNS Sanhita to grant bail.
- The petitioner was placed on the same footing as a co-accused who had already secured anticipatory bail.
- Appropriate conditions (sureties, non-tampering, reporting requirements) were imposed to protect trial integrity.
Arguments by the Parties
Petitioner
- No contraband was recovered from him.
- Arrest was based solely on a co-accused’s statement.
- Co-accused in the same position had obtained anticipatory bail.
State
- Opposed bail but conceded no recovery from the petitioner.
- Acknowledged parity with co-accused already on bail.
Factual Background
The petitioner was arrested on 06.11.2024 under Sections 21(c)/29 of the NDPS Act based solely on a co-accused’s statement, despite no contraband being found on him. A chargesheet was submitted on 02.05.2025 but no charges were framed. One of the co-accused, Kabir Sekh, had secured anticipatory bail on 06.01.2025. The petitioner applied for bail under Section 439 CrPC and Section 483 BNS Sanhita.
Statutory Analysis
- Article 37 NDPS Act: Bail bar applies only where contraband is recovered; absence of recovery excludes its operation.
- Section 439 CrPC & Section 483 BNS Sanhita: Confer discretionary power to grant bail even in NDPS matters, subject to conditions.
Alert Indicators
- ✔ Precedent Followed – The court affirmed established bail principles under NDPS Act when no recovery is made.