An accused with a history of multiple pending NDPS Act cases cannot satisfy the twin conditions for bail under Section 37 of the NDPS Act and is not entitled to anticipatory bail, as custodial interrogation is necessary for further investigation and recovery.

The prayer in the present petition under Section 482 BNSS, 2023 ( Section 438 Cr.P.C.) is for the grant of anticipatory bail in case bearing FIR No.09 dated 14.01.2026 under Sections 21, 27, 29, 61 and 85 of the NDPS Act, 1985 registered at Police Station Jhunir, District Mansa, Punjab.

The brief facts of the case are that Vinay Kumar was apprehended and the recovery of 16 grams of heroin came to be effected from him. During the course of investigation, he disclosed that he purchased the recovered heroin from Buta Singh (petitioner).

The learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case on the basis of a disclosure statement of his co-accused without any corroborative evidence whatsoever. Therefore, he was entitled to the concession of anticipatory bail. He placed reliance on the judgments in the cases of Tofan Singh Versus State of Tamil Nadu , 2020 AIR (Supreme Court) 5592, Rakesh Kumar Singla Versus Union of India, 2021(1) RCR (Criminal) 704, Surinder Kumar Khanna Versus Intelligence Officer Directorate of Revenue Intelligence, 2018(3) RCR (Criminal) 954, State by (NCB) Bengaluru Versus Pallulabid Ahmad Arimutta & Anr. 2022(1) RCR (Criminal) 762, Sanjeev Chandra Agarwal & Anr. Versus Union of India 2021(4) RCR (Criminal) 590, Vijay Singh Versus The State of Haryana, bearing Special Leave to Appeal (Crl.) No. (s).1266/2023 decided on 17.05.2023 and Vikrant Singh Versus State of Punjab, CRM-M-39657-2020.

The learned counsel for the State, on the other hand, contends that the petitioner is a habitual offender with 03 other cases registered against him under the NDPS Act. He, therefore, contends that the criminal antecedents and the conduct of the petitioner does not entitle him to the grant of anticipatory bail.

I have heard the learned counsel for the parties at length.

The Hon'ble Supreme Court in the case of State of Haryana Versus Samarth Kumar 2022 (3) RCR (Criminal) 991, held as under:-

“4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was effected from the respondents and that they had been implicated only on the basis of the disclosure statement of the main accused Dinesh Kumar. Therefore, reliance was placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu reported in (2021) 4 SCC 1.

5. But, it is contended by the learned Additional Advocate General appearing on behalf of the State of Haryana that on the basis of the anticipatory bail granted to the respondents, the Special Court was constrained to grant regular bail even to the main accused-Dinesh Kumar and he jumped bail. Fortunately, the main accused-Dinesh Kumar has again been apprehended. According to the learned Additional Advocate General, the respondent in the second of these appeals is also a habitual offender.

6. Learned counsel appearing on behalf of the respondent in the first of these Appeals contends that the State is guilty of suppression of the vital fact that the respondent was granted regular bail after the charge-sheet was filed and that therefore, nothing survives in the appeal. But,we do not agree.

7. The order of the Special Court granting regular bail to the respondents shows that the said order was passed in pursuance of the anticipatory bail granted by the High Court. Therefore, the same cannot be a ground to hold that the present appeals have become infructuous.

8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial.

9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.