2021 (5) TMI 673 - HC - Indian Laws

Grant of Bail - drug trafficking - narcotic drugs - rebuttal of presumption - offence punishable under Section 8 read with Section 22 and Section 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 - HELD THAT - It is apparent that applicant-Dheeraj was arrested on 7.12.2020 along with 20 grams of MDMA narcotic drugs (the commercial quantity of which is more than 10 grams) when he was sitting in an XUV along with co-accused Sohan @ Jojo, who was driving the vehicle. It is also found that so far as applicant-Adnan Khan is concerned, his name is mentioned by applicant Dheeraj in his memo prepared under Section 27 of the Evidence Act, and so far as applicant Abdul Hannan Khan is concerned, his name is mentioned by the applicant Adnan Khan in his memo prepared under Section 27 of the Evidence Act. The case diary also reveals that there have been a number of bank transactions between applicant-Adnan Khan and applicant-Abdul Hannan Khan and that is not all, from the account of applicant- Hannan Khan certain amounts have also been credited in the account of the applicant-Dheeraj. Apart from that, there is equally bulky Whatsapp chatting record of the applicants which prima facie indicates their nexus with in committing the offence under the NDPS Act - considering the fact that due to the fresh spread of COVID-19, since the trial courts have also stopped working and it appears that the said situation would last longer than expected, this Court finds it expedient at present to allow the present bail application for a temporary period of six months. Accordingly, the application is allowed partially and the applicants are released on bail for a period of six months from the date of their release. The bail applications stand partially allowed.

Summary

Issues:
Grant of bail under Section 439 of Criminal Procedure Code, 1973 based on the applicants' arrest in connection with a case under the Narcotic Drugs & Psychotropic Substances Act, 1985. The involvement of the applicants in drug trafficking, nexus between the accused, evidentiary value of memo under Section 27 of the Evidence Act, bank transactions, and Whatsapp chats as evidence.

Analysis:
1. The applicants filed their first application under Section 439 of the Criminal Procedure Code, 1973, concerning their arrest in connection with a case under the Narcotic Drugs & Psychotropic Substances Act, 1985. The applicants were accused of offenses punishable under Sections 8, 22, and 29 of the NDPS Act based on the seizure of 20 grams of MDMA Narcotics Drug from one of the applicants. The prosecution alleged the applicants were deeply involved in drug trafficking.

2. The defense argued that the applicants were falsely implicated, emphasizing the lack of substantial evidence connecting them to the offense. They highlighted the financial assistance given to one of the accused due to lockdown-related financial difficulties, asserting their innocence based on their background, financial status, and lack of substantial transactions related to the alleged drug dealings.

3. The defense further contended that the mere transfer of funds between the applicants did not establish guilt under the NDPS Act. They referenced previous cases where bail was granted to co-accused based on similar memo evidence and lack of seized drugs. The defense stressed the need for parity in granting bail to the present applicants.

4. The prosecution opposed bail, citing the applicants' habitual involvement in drug-related activities, evidenced by bank transactions and Whatsapp chats indicating a nexus between the accused. The prosecution argued against bail, claiming strong documentary evidence supporting the applicants' involvement in drug sale and purchase.

5. The court noted the arrest details and the interconnection between the applicants based on the memo prepared under Section 27 of the Evidence Act. Bank transactions and Whatsapp conversations further indicated a potential nexus between the accused in committing the NDPS Act offense.

6. The court rejected the defense's argument regarding apportioning drug quantity among co-accused, emphasizing that the NDPS Act does not mandate equal distribution of seized contraband in cases of joint possession. However, due to the prolonged trial delay caused by the COVID-19 situation, the court granted temporary bail for six months to the applicants, with strict conditions for surrendering after the specified period.

7. The court directed the release of the applicants on bail for six months upon furnishing a personal bond and surety, with a condition to surrender before the trial court after the specified period. Failure to surrender would result in arrest and trial proceedings according to the law.

8. The bail applications were partially allowed for a temporary period of six months, considering the exceptional circumstances caused by the COVID-19 situation and the trial court's halted operations.

This detailed analysis covers the issues raised in the judgment, including the arguments presented by both parties and the court's decision regarding the grant of bail to the applicants involved in the NDPS Act case.