2019 (6) TMI 1678 - HC - Indian Laws

Seeking grant of bail - Smuggling - illegal trafficking of contraband substance - cough syrup - methamphetamine tablets - statement recorded u/s 67 of the NDPS Act - HELD THAT - Undisputed position is that, commercial quantity of contraband substance is involved in this case and as such, the restriction of section 37 of the NDPS Act shall apply. Therefore, in terms of the provision of section 37 and also in view of the decision of the Supreme Court in SATPAL SINGH VERSUS STATE OF PUNJAB 2018 (7) TMI 32 - SUPREME COURT , it is imperative on the part of the court to record a finding as to it s satisfaction as per section 37 of the NDPS Act, before granting or refusing bail. According to the learned Standing Counsel for the NCB petitioner was arrested on the basis of statement of the co-accused Magrab, who stated in his statement purportedly recorded u/s 67 of the NDPS Act, that he would sell 68 gms of methamphetamine tablets to the present petitioner. The petitioner in his statement purportedly recorded u/s 67 of the NDPS Act denied such averment of the co-accused Magrab. Therefore, materials on record clearly show that no contraband involved in this case was recovered or seized from the possession of the present petitioner, inasmuch as, admittedly all the contraband, i.e., 18000 bottles of cough syrup and 758 methamphetamine tablets were seized from the possession of the other co-accused as mentioned above. Except the purported statement of co-accused Magrab Ali recorded u/s 67 NDPS Act, that he was suppose to sell the 68 gms of methamphetamine tablets to the present petitioner, which was denied by him, no other material has been brought on record to connect the present petitioner with the recovery of contraband or the offence of the present case. It is difficult to hold that the trial against the present petitioner may in all probabilities culminate in conviction. Therefore, there is no reasonable ground to believe that the petitioner may be ultimately held liable for the offence of this case. There is also no other cogent material to suggest that in the event of enlargement on bail, the petitioner shall commit the offence under the NDPS Act. The petitioner is allowed to be enlarged on bail of Rs. 20,000/- with a solvent surety of like amount to the satisfaction of the learned Special Judge, NDPS, Kamrup (Metro) - bail application disposed off.

Summary

Issues:
1. Bail application under section 439 Cr.P.C.
2. Consideration of contraband substance possession.
3. Application of section 37 of the NDPS Act.
4. Interpretation of bail restrictions under section 37.
5. Comparison with similar provisions in other Acts.
6. Supreme Court's observations on bail restrictions.
7. Evaluation of evidence for granting bail.
8. Impact on the right to liberty under Article 21 of the Constitution.

Analysis:
1. The petitioner filed a bail application under section 439 Cr.P.C. seeking release in connection with NCB (Crime) Case. The petitioner, Nurezzaman Islam, argued that no contraband substance was found in his possession, and there was insufficient evidence linking him to the alleged offense except for a statement from a co-accused under section 67 of the NDPS Act.

2. The respondent opposed the bail plea citing the involvement of commercial quantity contraband substances and the petitioner's admission of illegal trafficking during the statement recorded under section 67 of the NDPS Act. The court acknowledged the presence of commercial quantity contraband and the necessity to consider section 37 of the NDPS Act before granting or refusing bail.

3. Section 37 of the NDPS Act imposes restrictions on releasing individuals accused of offenses involving commercial quantity substances. The court referred to a Supreme Court decision highlighting the importance of considering section 37 before granting bail, emphasizing the need for a specific finding under this provision.

4. The court compared the bail restriction under section 37 with a similar provision in the Maharashtra Control of Organized Crime Act, 1999. It noted the Supreme Court's interpretation that bail restrictions should not prevent granting bail if the accused is unlikely to be convicted ultimately, emphasizing the need for the court to assess the likelihood of the accused committing further offenses while on bail.

5. Referring to the Supreme Court's detailed consideration of bail restrictions under the Maharashtra Act, the court highlighted the importance of not requiring a positive finding of innocence for granting bail. The court stressed that bail decisions should be based on the probability of the accused's conviction and the likelihood of committing further offenses under the relevant Act.

6. The court evaluated the evidence brought before it, focusing on the circumstances of the case where contraband substances were seized from other co-accused, not the petitioner. It noted the denial by the petitioner of the co-accused's statement linking him to the offense, concluding that there was insufficient material to connect the petitioner to the alleged offense.

7. Considering the impact on the petitioner's right to liberty under Article 21 of the Constitution, the court emphasized the need for reasonable grounds to deprive a person of liberty. After reviewing all materials, the court found no reasonable grounds to believe the petitioner would be held liable for the offense, leading to the decision to grant bail.

8. Ultimately, the court granted bail to the petitioner, requiring a nominal amount and a solvent surety to the satisfaction of the Special Judge, NDPS, Kamrup (Metro), highlighting the importance of safeguarding individual liberties even in cases involving serious offenses.