Q 1:- Whether bail can be granted in case the accused found in possession of commercial quantity of drug?
Ans:- The "Twin Conditions" for Bail as per S 37 of NDPS Act : Bail can only be granted if the public prosecutor has had an opportunity to oppose the application, and the court is satisfied that there are reasonable grounds to believe that accused is not guilty and is not likely to commit any offense while on bail.
Q 2:- Whether there is any bar to grant bail under the NDPS Act?
Print PageThe upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the Accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in Sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the Accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the Accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the Accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible Under Section 54 of the NDPS Act. {Para 39}
40. The impugned order based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the Accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. Since, the High Court has not considered the application of the Respondent on merits and has also not considered the mandatory requirement Under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the Respondent afresh on merits and in accordance with law.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 5544 of 2024.
Decided On: 20.12.2024
Narcotics Control Bureau Vs. Kashif
Hon'ble Judges/Coram:
Bela M. Trivedi and S.C. Sharma, JJ.
Author: Bela M. Trivedi, J.
Citation: MANU/SC/1384/2024,2024 INSC 1045.
Print PageIn my view, though after swallowing piece of paper, which causes release of drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither “preparation”, within the meaning of Section 2(xx), nor a “mixture” within the meaning of of the NDPS Act. So far as the judgment of the Hon'ble Apex Court in the case of Hira Singh (supra) is concerned, issue therein was, whether mixture of narcotic drug or psychotropic substances with one or more neutral substances, quantity of neutral substances can be excluded while determining the small or commercial quantity of narcotic drug and psychotropic substances. However herein, the papers containing dried LSD drops of LSD solution, not being a mixture, and the paper being not a neutral substance, judgment of the Apex Court, has no application to the facts of this case. {Para 11}
12. The learned Judge, as it appears from the impugned order, has accounted weight of papers “while calculating and determining quantity of the LSD as a “commercial quantity”. In addition, while holding quantity of charas recovered from the applicant was ‘commercial quantity’, is equally incorrect because charas allegedly recovered from the applicant was 970 gms i.e. less than 1 kg.
13. Thus, in consideration of the facts of the case, the findings of the learned Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise is incorrect. In this case, the Chemical Analyser's report, shows quantity of LSD drops solution was 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Therefore, rigors of Section 37 of the NDPS Act, are not applicable to the facts of this case.
In the High Court of Bombay
(Before Sandeep K. Shinde, J.)
Hitesh Hemant Malhotra Vs State of Maharashtra.
Criminal Bail Application No. 352 of 2020
Decided on December 7, 2020,
Citation: 2020 SCC OnLine Bom 3581 : (2021) 1 Bom CR (Cri) 353.
Print PageI am of the view that as mandated by the Hon‟ble Supreme Court in judgment of „Union of India vs. Bal Mukund & Ors.‟ [(2009) 12 SCC 161], standing order 1/88 has been opined to be a “requirement of law”. {Para 8}
9. The 3 Bench judgment of Bal Mukund (supra) is binding on this Court.
10. Relevant portion of Standing order 1/88 reads as under:
“2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each packet/container in case of seizure of more than one package/container.”
11. The standing order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted.
12. I am of the view that in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable.
IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLN. 3233/2022
LAXMAN THAKUR Vs STATE (GOVT. OF NCT OF DELHI)
CORAM: HON'BLE MR. JUSTICE JASMEET SINGH
Date of decision: 14.12.2022
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