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TMI Blog2021 (6) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... ested 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. - BAIL APPLN. 1177/2021 - - - Dated:- 3-6-2021 - HON'BLE MR. JUSTICE SURESH KUMAR KAIT Petitioner: Mr. Dharmender Rana And Ms.Vaishnavi K., Advocates Respondent: Mr. Subhash Bansal, Senior Standing Counsel for NCB with Mr. Shashwat Bansal, Advocate JUDGMENT 1. The present Petition has been filed seeking bail in the case arising out of C.C. No. VIII/59/DZ/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Haresh Rawal (petitioner herein) accepted that he came to the spot to purchase charas from Madan Lama and he had handed over ₹ 9500/- to him for the same. 6. Out of 47 packets recovered, 22 packets were containing small disk circular shape substance, 09 packets were containing substance in small sticks shape and rest 16 packets were containing substance in the shape of small stones. 7. The substance of 22 packets was tested individually and found positive for charas. Since substance of 22 packets was found similar in colour, texture and shape as well as the fact that same was found positive for charas therefore substance of all 22 packets was collected in a polythene and weighed and it was found to be 215 grams. The said polythene was tied with string and converted in cloth pulanda Mark-A. 8. The substance of 9 packets was tested individually and found positive for charas. Since substance of 9 packets was found similar in colour, texture and shape as well as the fact that same was found positive for charas, therefore, substance of all 9 packets was collected in a polythene and found to be 95 grams. The said polythene was tied with string and converted in cloth pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. 15. Learned counsel for the petitioner submitted that the alleged recovery from the possession of petitioner is one packet containing 10 gm. of contraband and, therefore, it is covered under small quantity of NDPS Act and so, there is no embargo under Section 37 of NDPS Act to release petitioner on bail. 16. Further submitted by learned counsel for petitioner that the alleged recovery has been made without informing petitioner of his right to be searched before Gazetted Officer or Magistrate and without serving notice under Section 50 of NDPS Act. Further urged that the disclosure statement of petitioner under Section 67 of NDPS Act was recorded under threat and coercion by NCB officials, to which he had retracted on the first available opportunity and so, it has not sanctity. 17. Learned counsel also submitted that the alleged recovery of 01 packet from petitioner was not separately weighed or sampled and was rather mixed with 46 packets recovered from the bag of co-accused prior to drawl of samples for chemical analysis. Therefore, it cannot be ascertained that the packet allegedly recovered from the possession of the petitioner contained narcotic substance, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this petition deserves to be dismissed. 23. The contentions raised by both the sides were heard at length and the material placed on record has been carefully perused. 24. 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. 25. Petitioner has claimed that prior to search and seizure proceedings, he was not served with Notice under Section 50 of the NDPS Act. On the other hand, 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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