[Sec 37 NDPS Act] Accused Possessing Large Commercial Quantities Of Contraband Are Not Eligible For Regular Bail: Delhi High Court

While considering an application seeking regular bail in a case registered under Sections 20/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court dismissed the bail pleas of two accused persons, arrested in a case involving the possession of commercial quantities of ganja.

Referring to the decision rendered in Union of India v. Md. Nawaz Khan [Criminal Appeal No.1043/2021], wherein the Supreme Court rejected the bail application, noting that the accused was not an unknown passenger in the vehicle but was someone in close contact with the other co-accused, a Single Judge Bench of Justice Amit Bansal observed that “Considering the aforesaid facts and circumstances and that the accused persons were travelling together in a vehicle and that large commercial quantities of Ganja have been recovered from their possession, in my considered opinion, the twin conditions as mentioned in Section 37 of the NDPS act are not satisfied and hence, bail cannot be granted to the applicants at this stage”.

Advocate Aditya Aggarwal appeared for the Petitioner, whereas Advocate Ritesh Kumar Bahri appeared for the Respondent.

As per the brief facts, the case as set up by the prosecution was that they had received secret information at Police Station Sarita Vihar about an illegal supply of Ganja. In response, a raiding party was constituted, and a raid was conducted. During the raid, three individuals, namely, Vinod, Iqbal, and Sheela, who were apprehended while traveling in a three-wheeler. Vinod and Sheela were seated in the back seat, each with a bag between their legs. Both bags were seized, sealed, and taken into possession, and all the accused individuals were subsequently arrested. Samples from the bags were drawn and sent for testing, which confirmed the presence of Ganja. After the investigation was completed, a chargesheet was filed, and the FSL report was submitted through a supplementary chargesheet. On August 29, 2023, charges were framed against all three accused persons under Section 20(C) read with Section 29 of the NDPS Act, which pertains to commercial quantity.

On behalf of Sheela, the argument was presented that she was apprehended with a bag containing 14.13 kg of Ganja, which falls into the category of an intermediate quantity. In contrast, her co-accused, Vinod, had a handbag containing 24.20 kg of Ganja, which qualifies as a commercial quantity. The defence contended that the quantity recovered from Vinod should not be aggregated with the quantity recovered from Sheela. Additionally, the other applicant, Iqbal, sought bail on the grounds that no contraband was recovered from him, and he was simply the driver of the auto.

After considering the submission, the Bench emphasized that in the present case, all the accused persons were traveling together in the same vehicle, and the total quantity of Ganja seized was 14.13 kg and 24.20 kg in two separate bags.

The Bench noted that simply because the bag containing 24.20 kg of Ganja was found between the legs of the co-accused Vinod and the bag containing 14.13 kg of Ganja was located between the legs of Sheela, it could not be asserted that the recovery from Sheela was limited to 14.13 kg.

The Bench further took into consideration the information provided in the Status Report submitted by the State, which indicated that there were 287 phone calls between Sheela and Iqbal, as well as 19 calls between Iqbal and co-accused Vinod. This information suggested that all the accused individuals were acting collectively and were in conscious possession of the entire quantity of 38.33 kg of Ganja.

In response to the submission made on behalf of Iqbal concerning non-compliance with Section 50 of the NDPS Act, the Bench observed that the provisions of Section 50 do not apply in cases where the seizure of contraband has been made from a motor vehicle. In this case, no seizure was made from Iqbal's person, and therefore, Section 50 of the NDPS Act was not applicable.

Thus, considering the circumstances, including the fact that the accused persons were traveling together in a vehicle and that large commercial quantities of Ganja were recovered from their possession, the High Court concluded that the twin conditions mentioned in Section 37 of the NDPS Act were not satisfied, and as a result, bail could not be granted to the applicants at this stage.

Cause Title: Sheela and Ors v. State Govt. of NCT of Delhi [2023: DHC: 7409]

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