Rajasthan High Court grants NDPS bail, questions magistrate’s jurisdiction to hear such pleas at all

The Rajasthan High Court has granted bail to a man accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 while simultaneously questioning whether a Judicial Magistrate has jurisdiction to entertain bail pleas in NDPS cases at all once a Special Court stands constituted under Sections 36 and 36A of the Act.

Justice Anoop Kumar Dhand, while allowing the bail application of Kaluram in an FIR registered at Police Station Sarwar, Ajmer, for offences under Sections 8/15 of the NDPS Act, flagged that a Judicial Magistrate had already granted bail to the co-accused in the case, a course the Court found difficult to reconcile with the non-obstante bar under Section 36A of the Act.

“Whether a Judicial Magistrate is having jurisdiction to hear and decide the bail application filed by the accused for the offence punishable under the NDPS Act, more particularly when Special Courts have been constituted for trial of such offences, in terms of Section 36 and 36A of the NDPS Act?”

The Court directed the Registrar (Judicial) to publish a note in the cause list inviting members of the Bar to assist on the question, and further directed that an explanation be called from the concerned Judicial Magistrate on the issue raised in the bail application. The matter has been listed for Jul 9, 2026.

The Court observed:

“A bare perusal of the aforesaid Section indicates that the legislature thought it fit to impose an embargo over the power of Magistrate in the matters of bail relating to any offence under the NDPS Act. In case the Magistrate is of the opinion that remand of the accused is not necessary for the offence under the NDPS Act, he cannot grant bail and shall order such person to be forwarded to the Special Court having jurisdiction.”

The bail application under Section 483 BNSS had been filed by Kaluram in connection with FIR No.94/2026 registered at Police Station Sarwar, District Ajmer, for offences under Sections 8/15 of the NDPS Act, arising out of the alleged recovery of 7.550 kg of Doda Post. Counsel for the applicant submitted that the recovery was effected at the instance of co-accused Jodharam, who had already been granted bail by the Court of the Judicial Magistrate, Sarwar, vide order dated Mar 30, 2026.

Appearing for Kaluram, advocates Jai Prakash Gupta, Achin Singhal and Yashovardhan Agarwal argued that there was no independent evidence connecting the applicant to the alleged offence, and that he had been implicated solely on the basis of a statement made by the co-accused Jodharam under Section 23(2) of the Indian Evidence Act. It was further submitted that the applicant had no criminal antecedents and that the trial would take considerable time to conclude, warranting the indulgence of bail. The Public Prosecutor opposed the application.

Considering the submissions and looking to the fact that the recovery had been effected from the co-accused rather than the applicant, and without expressing any opinion on the merits of the case, the Court allowed the bail application under Section 483 BNSS, directing that Kaluram be released on furnishing a personal bond of Rs.50,000 along with two surety bonds of Rs.25,000 each, subject to his appearing before the Trial Court on all dates of hearing.

Before parting with the order, the Court took note that the Judicial Magistrate, Sarwar, who was holding link charge, had granted bail to co-accused Jodharam despite the case involving an offence under Section 8/15 of the NDPS Act. The Court pointed out that Section 36A of the NDPS Act is a non-obstante clause overriding the Code of Criminal Procedure, and that offences under the Act punishable with imprisonment of more than three years are triable exclusively by Special Courts constituted under Section 36, which are to be manned by a Sessions Judge or Additional Sessions Judge appointed with the concurrence of the Chief Justice. Where a Magistrate considers that continued detention of an accused is unnecessary, the Court noted, the statute requires the person to be forwarded to the Special Court having jurisdiction rather than being released by the Magistrate himself.

The recovery of 7.550 kg of Doda Post in the case falls above the small quantity but below the commercial quantity threshold under the NDPS Act, attracting punishment under Section 15 of up to ten years’ imprisonment along with a fine extending to one lakh rupees — squarely within the class of offences the Court held triable only by a Special Court.

Holding that the issue required deeper consideration, the Court framed a specific question for the Bar to address:

Title: Kaluram v State of Rajasthan

Case No.: S.B. Criminal Miscellaneous Bail Application No. 9702/2026

Counsel for petitioner: Jai Prakash Gupta, Achin Singhal, Yashovardhan Agarwal

Counsel for respondent: N.S. Dhakar, PP with Shubham Sain