Punjab & Haryana HC: Mere Presence with Co-Accused Does Not Establish Conscious Possession of Commercial Quantity of Opium

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 21.09.2026

Punjab & Haryana HC: Mere Presence with Co-Accused Does Not Establish Conscious Possession of Commercial Quantity of Opium

The Punjab and Haryana High Court has granted regular bail to a man in an NDPS case involving the alleged recovery of 2.702 kg of opium, observing that the contraband was recovered from a bag carried by the co-accused and no contraband was alleged to have been recovered from the conscious possession of the petitioner.

Justice Virinder Aggarwal observed that mere presence alongside the person from whom the contraband was recovered, in the absence of any specific recovery from the petitioner, is a matter requiring appreciation of evidence during trial.

The ruling came in Anil Kumar v. State of Haryana, CRM-M-52368-2026, decided on September 18, 2026. The petition was filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 439 CrPC, seeking regular bail.

Case Arose From Alleged Recovery of 2.702 Kg Opium

• According to the prosecution, on March 20, 2026, officials of the Anti-Narcotics Cell, Karnal were conducting patrol and checking near NH-44 beneath Baldi Bypass Flyover, Karnal.
• A secret informer allegedly told the police that Anil Kumar and Roshan Kumar, residents of District Chatra, Jharkhand, were involved in bringing opium from Jharkhand and supplying it in Haryana. The informer further claimed that the two had brought a large quantity of opium and were present near Karn Lake.
• The information was reduced into writing and a report under Section 42 of the NDPS Act, 1985 was sent to the police station.

Police Claimed Compliance With Section 50 NDPS Act

• The prosecution stated that attempts were made to associate independent witnesses with the proceedings. Two persons allegedly declined, while another individual agreed to join as an independent witness.
• When the police reached near Karn Lake, they allegedly saw two persons standing on the roadside with a black bag. The secret informer identified them as Anil Kumar and Roshan Kumar.
• Both accused were served notices under Section 50 of the NDPS Act and opted to be searched in the presence of a Gazetted Officer.
• A DSP thereafter reached the spot and directed the police officials to conduct the search.

Opium Recovered From Bag Carried by Co-Accused Roshan Kumar

• The critical factual circumstance noted by the High Court was the place of recovery.
• The black shoulder bag was allegedly being carried by co-accused Roshan Kumar. During its search, police allegedly recovered a packet containing a black-coloured substance suspected to be opium.
• The substance, together with its packing, weighed 2 kilograms and 702 grams.
• The prosecution stated that the recovered material was sealed using the seals of the Investigating Officer and the DSP. The search proceedings were also allegedly videographed and uploaded on the e-Sakshya application.
• However, the High Court specifically recorded that the alleged contraband was recovered from the bag carried by Roshan Kumar and not from Anil Kumar.

Petitioner: Mere Association With Co-Accused Cannot Establish Conscious Possession

• Anil Kumar argued that he had been falsely implicated and that no contraband was recovered from his conscious possession.
• His counsel emphasised that although 2.702 kg of opium constituted commercial quantity, the recovery was made from the bag allegedly carried by co-accused Roshan Kumar.
• It was argued that mere presence or association with a co-accused cannot, by itself, establish conscious possession of narcotic contraband.
• The petitioner further submitted that the investigation had already been completed, the challan had been presented and no further recovery was required from him.
• He also contended that material prosecution witnesses were yet to be examined, the trial was likely to take considerable time, and he had clean antecedents with no other NDPS or criminal case against him.

Haryana Opposes Bail Citing Section 37 NDPS Act

• The State opposed the bail application primarily on the ground that the recovery involved 2.702 kg of opium, which falls within commercial quantity.
• It therefore argued that the stringent conditions contained in Section 37 of the NDPS Act applied.
• The State also pointed out that Anil Kumar had been apprehended along with Roshan Kumar pursuant to secret information and contended that his involvement was a matter to be determined during trial.
• The case therefore raised the familiar tension between the stringent bail restrictions applicable to commercial-quantity NDPS prosecutions and the constitutional protection of personal liberty under Article 21.

Right to Speedy Trial Is Integral to Article 21: High Court

The High Court devoted a substantial part of its order to the constitutional right to speedy trial.

Justice Aggarwal observed that:

• “The right to a speedy trial is an integral facet of the fundamental right to life and personal liberty guaranteed under Article 21…”
• The Court explained that the constitutional mandate does not merely require a fair trial. It also obligates the State to conclude criminal proceedings within a reasonable period so that the criminal process itself does not become punitive.

Prolonged Pre-Trial Detention Cannot Become Punishment

• The High Court relied on the Supreme Court’s landmark ruling in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, which recognised speedy trial as an essential and integral component of Article 21.
• It also referred to the Constitution Bench decisions in A.R. Antulay v. R.S. Nayak, (1992) 1 SCC 225 and P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.
• The Court noted that these judgments recognise speedy trial as a fundamental right and require constitutional courts to intervene where inordinate and unexplained delay results in denial of substantive justice.

Nature of Offence Does Not Eclipse Right to Speedy Trial

• The High Court further relied upon Tapas Kumar Palit v. State of Chhattisgarh, 2025 SCC OnLine SC 322 and Arvind Dham v. Directorate of Enforcement, 2026 (2) SSC (Criminal) 271, as cited in the order.
• Referring to these decisions, the Court stated that the right to speedy trial under Article 21 is not eclipsed by the nature of the offence.
• Prolonged incarceration of an undertrial without commencement or reasonable progress of trial can effectively transform pre-trial detention into punishment before conviction.
• The Court further recorded the principle that where the State or prosecuting agency cannot secure the accused’s fundamental right to a speedy trial, bail cannot be opposed merely by relying on the seriousness of the allegations where continued incarceration becomes oppressive.

Section 37 NDPS Act Cannot Authorise Indefinite Incarceration

• The High Court then considered the special restrictions contained in the NDPS Act.
• It acknowledged that the NDPS Act is a stringent penal statute enacted to combat illicit trafficking in narcotic drugs and psychotropic substances.
• However, relying upon the Supreme Court judgment in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, the Court observed that Section 37 cannot be interpreted so rigidly as to compel indefinite incarceration of an undertrial merely because the trial has not progressed.
• The order records the principle that a literal application of Section 37 divorced from constitutional values could result in punitive detention before conviction.
• The Court further referred to the proposition that when the State is unable to conclude trial within a reasonable time, the restrictions under Section 37 must be considered alongside the constitutional mandate of Article 21.

Mere Presence With Person Carrying Contraband Requires Evidence at Trial

• Turning specifically to Anil Kumar’s case, the High Court found it important that the 2.702 kg of opium was recovered from the black bag carried by Roshan Kumar.
• No contraband was alleged to have been recovered from Anil Kumar’s conscious possession.

The Court observed:

• “mere presence along with the person from whom the recovery was effected, in the absence of any specific recovery from the petitioner, would require appreciation of evidence during trial.”
• The challan had already been presented and Anil Kumar remained in custody. In these circumstances, the Court concluded that his further incarceration would serve no useful purpose.
• Importantly, this is a bail-stage finding, not a final determination that the petitioner had no connection with the alleged contraband. The question of his involvement and the prosecution evidence remains subject to adjudication at trial.

Punjab & Haryana HC Grants Regular Bail

• The High Court accordingly allowed Anil Kumar’s petition and ordered his release on regular bail, subject to furnishing the requisite bail and surety bonds to the satisfaction of the concerned Chief Judicial Magistrate, Illaqa Magistrate or Duty Magistrate.
• The bail was made subject to several conditions designed to protect the integrity of the trial.
• Among other things, the petitioner was directed not to induce, threaten or make promises to persons acquainted with the case and not to tamper with evidence or influence prosecution witnesses.
• He was also prohibited from leaving India without prior permission of the Trial Court.

Court Imposes Detailed Disclosure Conditions

• The High Court additionally imposed detailed identification and disclosure requirements.
• The petitioner must provide his permanent and current correspondence addresses with supporting documents. The Investigating Officer has been directed to verify those addresses within 48 hours of acceptance of the bail bonds.
• The Court also directed the petitioner to furnish his PAN, Aadhaar number, particulars of all operative bank accounts and a declaration concerning immovable properties, if any.
• Providing false information or concealing material particulars can constitute a ground for seeking cancellation of bail.
• The petitioner must further notify the Investigating Officer and Trial Court of any change in his residential address or mobile number within seven days.
• He must not commit a similar offence and must attend the trial unless his personal appearance is specifically exempted. Breach of these conditions may result in cancellation of bail and issuance of coercive process, including warrants of arrest.

Cases Referred to by the High Court

The order expressly referred to several important Supreme Court judgments concerning speedy trial, personal liberty and bail:

1. Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81 — speedy trial is an essential and integral component of Article 21.
2. A.R. Antulay v. R.S. Nayak, (1992) 1 SCC 225 — constitutional recognition of the right to speedy trial.
3. P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 — speedy trial flows from Article 21 and constitutional courts may intervene against inordinate delay.
4. Tapas Kumar Palit v. State of Chhattisgarh, 2025 SCC OnLine SC 322 — referred to regarding prolonged pre-trial incarceration and the constitutional right to speedy trial.
5. Arvind Dham v. Directorate of Enforcement, 2026 (2) SSC (Criminal) 271 — cited for the proposition that the right to speedy trial is not eclipsed by the nature of the offence.
6. Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352 — Section 37 NDPS Act cannot be applied so rigidly as to justify indefinite incarceration where the trial fails to progress within a reasonable time.

Why the Judgment Is Significant

• The ruling is important for NDPS bail jurisprudence, particularly in cases where the prosecution relies on recovery of commercial quantity but the contraband is not physically recovered from the applicant seeking bail.
• The judgment does not dilute the stringent requirements of Section 37 as a general proposition. Instead, it illustrates that the Court must consider the specific role attributed to the accused, the circumstances of recovery, stage of investigation, progress of trial and constitutional protection of personal liberty.
• It is also significant that the Court treated the question of whether mere association with a co-accused establishes conscious possession as an issue requiring evidence at trial rather than assuming possession solely from the petitioner’s presence at the place of recovery.

Key Takeaway

The Punjab and Haryana High Court has granted regular bail in a commercial-quantity NDPS case after noting that 2.702 kg of opium was recovered from a bag carried by the co-accused and not from the petitioner.

The Court held at the bail stage that mere presence alongside the person from whom recovery was made, without a specific recovery from the petitioner, requires appreciation of evidence during trial. At the same time, the judgment reinforces the constitutional principle that the right to speedy trial under Article 21 remains relevant even in prosecutions governed by stringent special statutes such as the NDPS Act.

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Source: Punjab & Haryana High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi