[ High Court of Judicature for Rajasthan ]

Rajasthan HC Questions Whether a Magistrate Can Grant Bail in NDPS Cases When Special Courts Exist

Granting bail to an NDPS accused, Justice Anoop Kumar Dhand raised a jurisdictional question on whether a Judicial Magistrate can hear bail applications when Special Courts are constituted under the NDPS Act, and called for an explanation from the concerned Magistrate who had granted bail to a co-accused.

Manaswi Singh — 7 July 2026 — 6 min read

While disposing of a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) by an accused lodged in Sub-Jail, Kekri, Justice Anoop Kumar Dhand of the Rajasthan High Court, Bench at Jaipur, identified a jurisdictional question that had not been addressed below: can a Judicial Magistrate entertain and decide a bail application for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) once Special Courts have been constituted under Sections 36 and 36A of that Act? The court granted bail to the applicant on the merits of his case, but simultaneously directed the Bar, the Registrar (Judicial), and the concerned Judicial Magistrate to address the question before the next listing date.

The Bail Application: FIR, Accused, and the Co-Accused Connection

The applicant, Kaluram son of Ramdayal (adopted son of Mangi Lal), aged about 58 years and resident of Dewaliya, Police Station Sarana, District Ajmer, was arrested in connection with FIR No. 94/2026 registered at Police Station Sarwar, District Ajmer. The offences alleged against him are punishable under Sections 8 and 15 of the NDPS Act.

The recovery at the centre of the case — 7.550 kg of Doda Post — was effected at the instance of a co-accused named Jodharam, not from Kaluram directly. Counsel for the applicant, Mr. Jai Prakash Gupta (with Mr. Achin Singhal and Mr. Yashovardhan Agarwal), submitted that the only material connecting Kaluram to the alleged incident was information furnished by Jodharam under Section 23(2) of the Indian Evidence Act. No independent evidence linking Kaluram to the contraband was placed on record. Counsel also pointed out that Kaluram has no criminal antecedents and that trial would take its own time to conclude.

The Public Prosecutor, Mr. N.S. Dhakar (with Mr. Shubham Sain), opposed the application.

Why the Court Granted Bail

Justice Dhand accepted the submissions on behalf of the applicant. The court noted that the recovery had been effected from co-accused Jodharam, and Kaluram had been implicated solely on the basis of Jodharam's information. Given that fact, and the likelihood of a prolonged trial, the court found it appropriate to grant bail without expressing any opinion on the merits or demerits of the case.

Kaluram was directed to be released on bail upon furnishing a personal bond of Rs. 50,000/- with two surety bonds of Rs. 25,000/- each to the satisfaction of the Trial Court, with the condition that he appears before that court on all dates of hearing and whenever called upon.

The Jurisdictional Issue: Co-Accused Jodharam's Bail and the Magistrate's Competence

Before concluding its order, the court raised a concern triggered by the procedural history of the co-accused. Jodharam, who is also an accused under Sections 8 and 15 of the NDPS Act in the same FIR, had already been granted bail — not by a Special Court, but by the Court of the Judicial Magistrate, Sarwar, District Ajmer (who was holding link charge), vide order dated 30 March 2026.

This prompted Justice Dhand to examine whether that grant of bail was jurisdictionally competent at all.

Section 36A(1)(b) of the NDPS Act is a non-obstante clause. It overrides the Code of Criminal Procedure and provides that where a person accused of an NDPS offence is forwarded to a Magistrate under Section 167 Cr.P.C., the Magistrate may authorise detention for a period not exceeding 15 days (for a Judicial Magistrate) or seven days (for an Executive Magistrate). Crucially, the proviso to Section 36A(1)(b) states that if the Magistrate considers the detention of the accused unnecessary, he cannot grant bail — he must forward the accused to the Special Court having jurisdiction.

Section 36A(1)(c) further provides that the Special Court exercises all powers that a Magistrate would exercise under Section 167 Cr.P.C. in relation to such an accused. Section 36A(3) preserves the High Court's special powers regarding bail under Section 439 Cr.P.C., and specifically provides that the High Court may exercise those powers as if the reference to “Magistrate” in that section included a reference to a “Special Court” constituted under Section 36.

The court also noted the nature of the offence. Section 15 of the NDPS Act, for contraband that is more than the small quantity but less than the commercial quantity — which is the position here with 7.550 kg of Doda Post — provides for imprisonment up to 10 years and a fine up to Rs. 1,00,000/-. This places it squarely within the category of offences exclusively triable by a Special Court under Section 36A(1)(a), since the punishment exceeds three years.

The court read Sections 36 and 36A together and observed that the legislature had imposed an embargo on the power of a Magistrate in bail matters arising out of the NDPS Act. If the Magistrate does not consider further remand necessary, the correct course is not to grant bail but to forward the accused to the Special Court having jurisdiction. The Judicial Magistrate, Sarwar, who was on link charge, had instead granted bail to Jodharam. Whether that Magistrate had the jurisdiction to do so was left as the precise question to be answered.

The Question Formulated and Steps Directed

Justice Dhand formally framed the following question for consideration:

“Whether a Judicial Magistrate is having jurisdiction to hear and decide the bail application filed by the accused” for an offence punishable under the NDPS Act, particularly when Special Courts have been constituted under Sections 36 and 36A of that Act.

Three specific steps were directed. Members of the Bar were requested to assist the court on the issue. The Registrar (Judicial) was directed to publish a note in the cause-list inviting members of the Bar to address the question. An explanation was called from the concerned Judicial Magistrate, Sarwar, District Ajmer, on the issue raised in the bail application.

The matter was listed for 9 July 2026.

Outcome

S.B. Criminal Miscellaneous Bail Application No. 9702/2026 was allowed. Kaluram son of Ramdayal is to be released on bail upon furnishing a personal bond of Rs. 50,000/- with two surety bonds of Rs. 25,000/- each to the satisfaction of the Trial Court, subject to his appearance on all dates of hearing. The jurisdictional question regarding the competence of a Judicial Magistrate to grant bail in NDPS cases where Special Courts are constituted remains pending before the court, with the Registrar (Judicial) directed to ensure it is listed before members of the Bar, and the concerned Magistrate directed to file an explanation. The next date is 9 July 2026.