2013 (11) TMI 1764 - HC - Indian Laws

Seeking grant of regular bail - offences punishable u/s 9A, 25A and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS' Act) - recovered and seized 100 kgs of Pseudoephedrine - controlled substance as defined u/s 2(vii) (d) of the NDPS Act - HELD THAT - It was fairly conceded by learned counsel for the respondent that bar of Section 37 of the NDPS Act is not attracted in the present case since as per the prosecution 100 kgs of Pseudoephedrine was recovered which is a controlled substance. Pseudoephedrine is not a narcotics drug as envisaged under Section 2 (vii) (a) of the Act. Keeping in view the totality of facts and circumstances of the case, coupled with the fact that the petitioner is in custody since 15th December, 2011, he is admitted to bail on his furnishing personal bond in the sum of ₹ 50,000/- with one surety in the like amount to the satisfaction of the concerned Trial Court. Petitioner shall deposit his passport, if any, with the Trial Court and shall not leave the country without the permission of the concerned Trial Court. He is further directed to furnish his current address to DRI and in case of any change in address, DRI be informed immediately. The application stands disposed of in the above terms.

Summary

Issues:
Grant of regular bail under Section 439 Cr.P.C.

Analysis:
1. The petitioner sought regular bail under Section 439 Cr.P.C. for offenses under the NDPS Act. The petitioner was accused of driving a vehicle from which 100 kgs. of Pseudoephedrine, a controlled substance, was seized. The substance is not a narcotic drug but has legitimate uses, including medical purposes. The petitioner argued that the rigour of Section 37 of the NDPS Act did not apply, as no minimum punishment was prescribed for the possession of the substance. Previous bail applications were dismissed, and the petitioner had been in custody since December 15, 2011. The petitioner relied on various case laws to support the bail application.

2. The respondent opposed the bail application, citing the dismissal of a previous application and the framing of charges with ongoing evidence recording. Emphasis was placed on the substantial seizure of 100 kgs. of Pseudoephedrine and the denial of bail to a co-accused. The respondent argued against granting bail due to the gravity of the recovery.

3. In response, the petitioner's counsel argued that previous case law cited by the respondent did not apply in the current situation. Reference was made to a case highlighting that the judgment relied upon by the respondent was contrary to the explicit language of Section 37 of the NDPS Act. It was argued that the previous dismissal did not preclude the petitioner from seeking bail.

4. The prosecution's case detailed the interception of the vehicle carrying the controlled substance and the recovery of 100 kgs. of Pseudoephedrine, with the petitioner driving the car. The complicity of another individual could not be established, leading to their status as a witness. The trial against the petitioner and a co-accused was ongoing.

5. During arguments, it was acknowledged that the bar of Section 37 of the NDPS Act did not apply in this case, as the recovered substance was a controlled substance, not a narcotic drug. Previous cases involving substantial recoveries of controlled substances were referenced to support the grant of bail. The court considered the totality of circumstances, noting the petitioner's prolonged custody since December 2011, and granted bail upon certain conditions, including a personal bond and surrender of passport.

6. The judgment concluded by disposing of the application in favor of the petitioner, allowing bail under specified conditions and directing the petitioner to comply with court instructions regarding address updates and travel permissions.

Conclusion:
The court granted the petitioner bail under Section 439 Cr.P.C. considering the nature of the seized substance, previous case laws, and the petitioner's custody duration, subject to specified conditions.