2019 (9) TMI 1101 - HC - Indian Laws

Smuggling - Cocaine - section 37 of NDPS Act - offence punishable under Section 8 read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - release of accused on bail - HELD THAT - Section 37 of the NDPS Act says that twin-conditions have to be adhered to by the court while dealing with the parameters of Section 439 of Cr.PC. The NDPS Act is an Act enacted with an object to make stringent provision for control, regulation and operation relating to NDPS Act. It is a special enactment, Section 37 of the Act, states that a non-abstante clause and is in negative terms limiting the scope and applicability of the provision of criminal procedure for bail. The non abstante clause with which Section 439 of Cr.PC., should be given with true manner and clearly it is intended to restrict the power to grant bail. The power to grant bail under any of the provisions of Cr.p.c. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act. It is clear that Section 37(b)(i) (ii) of the Act are the specific limitation prescribed under the provision i.e., the Public Prosecutor has to be given an opportunity to oppose the application and secondly, the court must satisfy itself that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. The non compliance of mandatory provisions are also to be taken into consideration by the courts while dealing with the bail matters particularly u/s.37 of the Act. If the mandatory provisions are not strictly followed, if it would otherwise prejudice the accused, in such an eventuality, the rigor of Section 37 of the NDPS Act will be diluted in such an eventuality, the accused may be entitled to be released on bail. Under section 37 of the Act, the court has to tentatively make an evaluation to find out that, the accused was not guilty for the purpose of granting bail. If any doubt arises, in such an eventuality, an opportunity should be given to the prosecution to establish the same - In this particular case also, the quantitative analysis is also detected i.e., the entire 400 grams contained Cocaine and out of that, 5 grams was taken out in the presence of the panch witnesses. When such prima facie material is available, it cannot be said that merely because quantitative analysis report has not beenreceived, in any manner takes away the test conducted by the NCB officials by using the Field Drug Detection Kit tentatively and that the pouches contained 400 grams of Cocaine and out of that 5 grams of each were taken for the purpose of qualitative analysis. The accused is not guilty of the offence alleged against her - she is not entitled to be enlarged on bail - petition dismissed.

Summary

Issues Involved:
1. Proper procedure for search and seizure under the NDPS Act.
2. Compliance with Section 50 and Section 52 of the NDPS Act.
3. Requirement of quantitative and qualitative analysis of seized substances.
4. Applicability of Section 37 of the NDPS Act in granting bail.

Detailed Analysis:

1. Proper Procedure for Search and Seizure under the NDPS Act:
The respondent, Narcotic Control Bureau (NCB), intercepted a bus based on credible information about a Nigerian national carrying cocaine. The NCB officials identified the petitioner, who voluntarily opened her bag and produced four ball-shaped packets containing cocaine. The NCB team tested the substance using a Field Drug Detection Kit, confirming it as cocaine. The total weight was found to be 400 grams, a commercial quantity. The petitioner argued that the procedure followed by the NCB was improper, particularly the search and seizure process.

2. Compliance with Section 50 and Section 52 of the NDPS Act:
The petitioner’s counsel contended that the search and seizure did not comply with Section 50 and Section 52 of the NDPS Act, which mandates that a female should be searched by another female officer. The court noted that the NCB officials did not conduct a physical search of the petitioner but instead, she voluntarily opened her bag and handed over the contraband. Therefore, the court concluded that there was no violation of the mandatory provisions, as the search was not conducted in the traditional sense but was a voluntary production of the contraband.

3. Requirement of Quantitative and Qualitative Analysis of Seized Substances:
The petitioner’s counsel argued that only qualitative analysis was conducted, not quantitative, violating the guidelines of Circular No.1/88. The court acknowledged that while there was some infraction regarding the quantitative analysis, the qualitative analysis confirmed the presence of cocaine. The court emphasized that the presence of 400 grams of cocaine was prima facie established through the Field Drug Detection Kit, and the prosecution should be given an opportunity to prove the quantity during the trial.

4. Applicability of Section 37 of the NDPS Act in Granting Bail:
Section 37 of the NDPS Act imposes stringent conditions for granting bail, requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and will not commit any offense while on bail. The court noted that the Public Prosecutor was given an opportunity to oppose the bail application. Given the prima facie evidence of the petitioner’s involvement and the commercial quantity of cocaine seized, the court found no reasonable grounds to believe that the petitioner was not guilty. Thus, the court concluded that the petitioner was not entitled to bail under the stringent provisions of Section 37 of the NDPS Act.

Conclusion:
The court dismissed the bail petition, emphasizing that the petitioner’s voluntary production of the contraband and the prima facie evidence of a commercial quantity of cocaine justified the denial of bail. The court also highlighted the importance of giving the prosecution an opportunity to establish the case during the trial, particularly concerning the quantitative analysis of the seized substance.