2021 (6) TMI 337 - HC - Indian Laws

Seeking grant of Bail - Smuggling - recovery of contraband item - Heroin - personal search of accused was carried out or not - evidentiary value of petitioner s statement recorded under Section 67 of the Act - HELD THAT - In the present case, 46 small zip lock polythene packets containing contraband were recovered from the bag of co-accused Madan Lama and 01 packet was recovered in possession of present petitioner. In total, 475 gm. contraband/ heroin was recovered in this case - The stand of NCB is that personal search of accused was not carried out, as 01 packet containing contraband recovered from petitioner was in his hands while exchanging it for money and the remaining 46 packets were recovered from the bag of co-accused and, therefore, notice under Section 50 of the Act was not required to be given. This has so been observed by the court below while dismissing petitioner s bail application. Further, the evidentiary value of petitioner s statement recorded under Section 67 of the Act cannot be prejudged at this stage. Moreover, question regarding call detail and chats, will be also tested during trial. In the present case it is not disputed that one packet recovered in the hands of petitioner contained 10 gm. of contraband, which falls within the category of small quantity . Thus, the prima facie role attributed to the petitioner in the present case appears to be that he had purchased one packet containing 10 gm. charas, which essentially is small quantity - The substance recovered in this case is not of commercial quantity. Thus, the bar of Section 37 of NDPS Act is not applicable. Moreover, petitioner is in judicial custody since 19.12.2020. Charge sheet in this case has been filed but Charge is yet to be framed and trial will take substantial time. Accordingly, this Court is of the considered opinion that petitioner deserves to be released on bail. Petition allowed.

Summary

Issues:
Petition for bail under Section 8/20(b)/29 of NDPS Act - Dismissal of bail applications by trial court - Recovery of contraband - Allegations of illegal trafficking - Non-compliance with procedural requirements - Lack of public witnesses - Merits of the case - Grant of bail.

Detailed Analysis:

Issue 1: Petition for Bail and Dismissal by Trial Court
The petitioner filed a bail petition seeking relief from the orders dated 29.02.2021 and 23.03.2021 passed by the trial court, which dismissed his previous bail applications. The petitioner sought bail in a case registered under Section 8/20(b)/29 of the NDPS Act, pending trial.

Issue 2: Recovery of Contraband and Allegations of Illegal Trafficking
The case involved a raid based on secret information leading to the apprehension of individuals exchanging narcotics. A total of 47 packets containing charas were recovered, with the petitioner admitting to purchasing one packet and paying a sum for it. The recovery included 475 grams of charas and currency notes, along with mobile phones and other items.

Issue 3: Non-Compliance with Procedural Requirements
The petitioner raised concerns regarding procedural lapses, including the lack of notice under Section 50 of the NDPS Act, coercion in recording statements, and mixing of recovered packets before sampling. These issues were contested by the NCB, emphasizing the circumstances of the recovery and the statements made by the accused.

Issue 4: Lack of Public Witnesses and Merits of the Case
The absence of public witnesses to corroborate the prosecution's version and challenges to the evidence presented, such as mobile data and chats, were highlighted. The petitioner argued that the recovery from him constituted a small quantity, making the offense bailable, as supported by legal precedents.

Issue 5: Grant of Bail
After considering the arguments and evidence, the Court found that the recovery of a small quantity of contraband did not invoke the bar of Section 37 of the NDPS Act. Given the petitioner's custody since December 2020 and the pending trial, the Court granted bail upon the petitioner furnishing a personal bond and surety.

In conclusion, the Court directed the petitioner to comply with bail conditions, refrain from influencing witnesses, and attend court proceedings as required. The order was to be communicated to the Trial Court and Jail Superintendent for necessary action and monitoring.