2019 (11) TMI 1671 - HC - Indian Laws

Seeking grant of bail - smuggling - recovery of contraband item - Ketamine - Section 37 of the NDPS Act - HELD THAT - Undisputed facts are that petitioner is arraigned as accused No.1 when the NCB Team intercepted the Corrolla Car and when it was stopped at the particular place, the petitioner is alleged to have taken away the trolley from one Virendra Singh, which was containing 26.75 kgs of Ketamine material. Petitioner was apprehended by the NCB Team and in his voluntary statement, he has stated the facts in what way the material was taken away. No doubt, such material was carried illegally without there being any documents. That apart, petitioner is not involved in any other offences. Even though Clause 2(b) (i) of Section 37 of the Act, 1985 specifies that he is guilty of such offence and that he is not likely to commit any offence while on bail. The petitioner is not involved in any other offences and prima-facie he seems to be middleman-carrier. Since charge-sheet has been filed on 25.09.2019 and respondent has not made out a case as to what purpose the petitioner shall be continued in the custody, except that the petitioner admitted the alleged incident in his voluntary statement before the NCB. Petitioner shall be released on bail on his furnishing surety/bail bond to the satisfaction of the trial Court - petition allowed.

Summary

Issues:
1. Bail application under Section 439 of Cr.P.C. for offences under NDPS Act, 1985.
2. Interpretation of Section 37 of the NDPS Act regarding bail for offences involving commercial quantity.
3. Consideration of bail based on voluntary statement under Section 67 of the NDPS Act.
4. Likelihood of the accused committing further offences while on bail.
5. Comparison with relevant legal precedents for granting bail under NDPS Act.

Analysis:
1. The petitioner sought bail under Section 439 of Cr.P.C. as accused No.1 in a case under the NDPS Act, 1985. He was apprehended with 26.75 kgs of Ketamine, acting as a carrier for the seized material. The charge-sheet was filed, and the petitioner claimed not to be involved in any other offences.

2. The respondent opposed bail citing Section 37 of the NDPS Act, which allows bail consideration only for offences involving commercial quantity under specific conditions. The respondent argued that the petitioner's voluntary statement indicated his guilt and the likelihood of committing further offences while on bail.

3. The petitioner's voluntary statement under Section 67 of the NDPS Act admitted to illegally possessing the Ketamine material. However, the petitioner claimed to be a middleman-carrier without involvement in other offences. The court considered the circumstances of the case and the absence of a clear reason for continued custody.

4. The respondent expressed concerns about the petitioner fleeing the country and the pending arrest of another accused. The court noted the possibility of preventing the petitioner from fleeing by impounding his passport. The lack of evidence supporting the need for continued custody further weakened the respondent's argument.

5. The court referenced a recent Supreme Court case where bail was granted under Section 37 of the NDPS Act during trial, based on furnishing bail bonds/sureties. Drawing from this precedent, the court allowed the petition and ordered the release of the petitioner on bail, subject to furnishing surety/bail bond to the trial court's satisfaction.