Second Limb U/S 37 NDPS Act Can Be Diluted If Accused Has No Criminal Antecedents: Kerala HC Grants Bail To Accused
The Kerala High Court granted bail to a man, reiterating that the second limb under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) can be diluted if the accused has no criminal antecedents.
The accused man filed a bail application under Section 439 of the Criminal Procedure Code (CrPC) being arrested for the offence under NDPS Act.
A Single Bench of Justice C.S. Dias noted, “In Dheeraj Kumar Shukla v. The State of Uttar Pradesh, the Hon’ble Supreme Court has held that the second limb under Section 37 of the NDPS Act can be diluted if the accused has no criminal antecedents.”
The Bench said that the rigour under Section 37 of NDPS Act stands diluted and the accused is entitled to be released on bail.
Advocate P. Rahul appeared for the petitioner/accused while Senior Public Prosecutor C.S. Hrithwik appeared for the respondent/State.
In this case, the petitioner was the accused in the case registered against him for allegedly committing the offences punishable under Sections 22(c) and 29 of the NDPS Act. He was arrested and hence, was seeking bail before the High Court. As per the prosecution case, the accused was found in conscious possession of 106 grams of MDMA at the Kottarakkara private bus stand. He was arrested on the spot with the contraband article.
During his interrogation, the confessed that the co-accused persons had provided financial assistance to him to purchase the contraband on the assurance that he would give them profit. As per the prosecution case, the contraband was concealed in three packets weighing 93 gms, 13 gms, and 11 gms, respectively, i.e., a total of 117 gms. The Detecting Officer had cut open three covers at the scene of occurrence and transferred the contraband into a single cover which was in his possession, and weighed it and found that the contraband was 106 gms.
The High Court in view of the above facts observed, “In this case, irrefutably, the contraband was seized separately by the Detecting Officer from the conscious possession of the petitioner in three separate covers. Thereafter he mixed the contraband without the permission of the Magistrate and put them in one cover without drawing the representative samples from the three packets. From the one single packet, he has drawn two samples and sent them for chemical analysis. This is apparent from the chemical analysis report. As per the chemical analysis report now produced before this Court it has turned out that the contraband is ‘methamphetamine’ and not ‘MDMA’.”
The Court added that when the statutory provisions mandate a particular procedure to be followed, it was the bounden duty of the Detecting Officer to have followed the prescribed procedure as no person can assume the nature of the substance on speculation and conjectures.
“It is to ensure a fair trial that the legislature has incorporated the above safeguards in the above provisions. … It may be true that in the present case when the quantity of the contraband allegedly seized from the accused is added, it will fall within the ambit of a commercial quantity as specified in Serial No.159 of the Specification of the Small and Commercial Quantity of Narcotic Drug or Psychotropic Substance (SO 1055 (E) dated 19.10.2001 as amended), and consequentially the rigour under Section 37 of the Act will apply”, it enunciated.
Furthermore, the Court noted that Section 37 mandates that a person who is accused of an offence under Sections 19, 24 and 27-A of the NDPS Act and also involving commercial quantity shall not be released on bail unless the court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail.
“The prosecution does not have a case that the petitioner has criminal antecedents. … On an overall conspectus of the facts, rival submission made across the Bar, the law referred to the afore-cited judgments and my findings rendered above, particularly regarding the infraction of the statutory provisions by the Detecting Officer, which has obviously caused prejudice to the petitioner, and on comprehending the fact that petitioner has no criminal antecedents, I find that there are reasonable grounds to hold that the petitioner has not committed the alleged offence and is not likely to commit the offence”, it concluded.
Accordingly, the High Court allowed the application and directed the petitioner to be released on bail on executing a bond of Rs. 1 lakh.
Cause Title- Amal v. State of Kerala (Neutral Citation: 2024:KER:43960)
Appearance:
Petitioner: Advocates P. Rahul and Abhina L.
Respondent: SPP C.S. Hrithwik