Length Of Custody Alone Not A Ground To Override Statutory Embargo U/S 37 NDPS Act In Commercial Quantity Cases: Rajasthan High Court

The Court also held that ownership of the premises is not the test of conscious possession. It further held that a Sub-Inspector posted as SHO is an empowered officer under the State's 1986 notification, and that his power under Section 42 of the Act is not confined to the territorial limits of his own police station.

A Single Judge Bench of Justice Sandeep Shah observed, “…The accused-applicant has been in custody since 14.03.2024, but the length of custody alone, in a case involving a commercial quantity, is not a ground to override the statutory embargo of Section 37, particularly when the trial is proceeding and accused-applicant has not even been behind the bars for one half of the period of maximum sentence as prescribed. The accused-applicant has not been able to satisfy this Court with regard to the twin conditions of Section 37, and therefore no case for grant of bail is made out…”.

Advocate Bhanwaru Ram appeared for the petitioner and Advocate Hanuman Prajapati appeared for the respondent.

According to the prosecution, police acting on prior secret information found eleven plastic bags containing 210 kg of poppy husk in a shed near the house of the accused's father-in-law. The accused allegedly tried to flee and was caught. He allegedly named one Sunil Bishnoi as the supplier, and call records, chats and mobile location data were said to link the two. The FIR was registered at Police Station Lohawat, Phalodi, under Sections 8 and 15 of the NDPS Act.

The Special Judge (NDPS), Phalodi, had rejected his bail application on 1 July 2025. He then approached the High Court under Section 483 of the BNSS. He argued that he had no conscious possession, that Section 42(1) was violated because the recovering SHO belonged to another police station, that the grounds of arrest were not communicated, and that his incarceration was prolonged.

Noting that 210 kg far exceeds the commercial quantity of 50 kg for poppy straw, the Court held that Section 37(1)(b) applied. Referring to Mohan Lal and Madan Lal, it held that the test of possession is knowledge of the contraband and the power and intention to exercise dominion over it, whether actual or constructive. The prior information, the accused's presence and conduct, and the recovery together indicated knowledge and control prima facie.

On Section 42, the Court found that the recovering officer, a Sub-Inspector posted as SHO, was authorised by Notification S.O. 115 of 1986. The Superintendent of Police had also directed him to act for the SHO who was on medical leave, and the information had been forwarded under Section 42(2). Roy V.D. was distinguished because it involved a wholly non-empowered officer, and non-exhibition of the SP's order was held not to vitiate the proceedings. The Court found the recovery and arrest memos recorded communication of the grounds of arrest, and noted the plea was raised only at the stage of arguments.

On incarceration, the Court relied on precedents, along with Section 479 BNSS. It held that the accused had not undergone even half of the maximum sentence, and that Article 21 must be read harmoniously with Section 37.

The Court held that the accused failed to satisfy the twin conditions of Section 37 and dismissed the bail application. It clarified that its observations do not express any opinion on the merits.

Cause Title: Shakoor Khan v. State of Rajasthan (Neutral Citation: 2026:RJ-JD:48352)

Appearances:

Petitioner: Bhanwaru Ram, Advocate.

Respondent: Hanuman Prajapati, Advocate.

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