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IN THE HIGH COURT OF BOMBAY
M.S. Karnik, J.
Alam Bhure Shah - Appellant
Versus
State - Respondent
Criminal Application (Bail) No. 264 of 2023
Decided On : 13-06-2023
BAIL - NARCOTIC DRUGS - The court granted bail to the applicant charged under Sec. 20(b)(ii)(C) of the NDPS Act, considering the absence of criminal antecedents, the nature of the evidence, and the applicant's compliance with stringent conditions. The court interpreted the provisions of Sec. 37, allowing for bail despite the serious charges due to the specific circumstances of the case, including the applicant's lack of flight risk and the lengthy custody period.
Fact of the Case:
The applicant was arrested for possession of 1.100 grams of charas, which is below the commercial quantity threshold of 1.000 kg as per the NDPS Act. The applicant has been in custody for over two years, with the trial delayed due to a vacant court. One witness has been examined, and two more are pending.
Finding of the Court:
The court found that while the applicant's possession of charas invoked the rigors of Sec. 37 of the NDPS Act, the presence of cannabis in the forensic report provided grounds to consider bail. The absence of criminal antecedents and the applicant's residency in Goa were also significant factors.
Issues: Whether the applicant should be granted bail under the NDPS Act despite the serious nature of the charges and the provisions of Sec. 37.
Ratio Decidendi: The court held that the twin conditions of Sec. 37 could be satisfied given the specific circumstances, including the nature of the evidence and the applicant's lack of prior criminal history, allowing for bail to be granted with stringent conditions.
Final Decision: The application for bail was granted, subject to conditions including a PR bond, regular attendance at trial, and restrictions on leaving the state.
JUDGMENT/ORDER
1. Heard learned Counsel for the applicant and the learned Additional Public Prosecutor for the respondent-State.
2. The learned Additional Public Prosecutor vehemently opposed the application for bail.
3. This is an application for bail in respect of an offence punishable under Sec. 20(b)(ii)(C) of the Narcotic Drugs and Pschotrophic Substance Act, 1985 ('NDPS Act' for short), and registered vide FIR No. 8 of 2021. The applicant was arrested on 16/4/2021. The applicant is in custody for more than two years. I am informed that one witness has been examined and two more witnesses are to be examined. However, it is submitted that the trial is not proceeding as the Court is vacant. The applicant was found in possession of 1.100 grams of charas, the commercial quantity stipulated is 1.000 kg of charas. The rigors of Sec. 37 of the NDPS Act, therefore, would be attracted. For the quantity found and the fact that there are no criminal antecedents against the applicant, would have otherwise been a good ground to release the applicant on bail. However, the twin conditions of Sec. 37 would have to be satisfied. The trial, undoubtedly, will take some time to complete and the applicant is in custody for more than two years. Moreover, the report of the Forensic Science Laboratory indicates that there is presence of cannabis as also tetrahydrocannabinol. For the purpose of grant of bail, I am inclined to accept the submission of the learned Counsel for the applicant that though what is alleged is that applicant is found in possession of charas, a reference to cannabis in the FSL report would entitle the applicant to get over the rigors of Sec. 37 of the NDPS Act.
4. There are no criminal antecedents against the applicant. In the circumstances, it may not be possible to assume that the applicant is likely to commit similar activities.
5. The applicant is a resident of Goa. Stringent conditions can be imposed upon him while releasing the applicant on bail. However, there is nothing on record that the applicant is a flight risk or that he will avoid attending the trial.
6. The application for bail is granted in the following order :
ORDER
(i) The applicant shall be released on bail on furnishing a PR bond of ?1, 00, 000/- with one or more sureties in the like amount to the satisfaction of the learned Trial Court, in connection with FIR No. 8/21 registered with the ANC Police Station.
(ii) The applicant shall attend the trial regularly and report to the ANC Police Station, Panaji-Goa on every Sunday between 10:00 a.m. to 12:00 noon.
(iii) The applicant shall not tamper with the evidence.
(iv) In case it is reported that the applicant is indulging in similar activities, liberty to apply for cancellation of the bail.
(v) The applicant shall not leave the State of Goa till the trial is concluded without the permission of the trial Court.
7. The application is disposed of.
The judgment established that the prolonged incarceration and the absence of criminal antecedents can be considered in granting bail under Section 37 of the NDPS Act, even in cases involving commerci....
The main legal point established in the judgment is that the rigours of S. 37 of the NDPS Act do not apply when the quantity of contraband falls within an intermediate category, and the principles fo....
The main legal point established in the judgment is the interpretation of the provisions of the NDPS Act, particularly the definitions of commercial and small quantities, and the applicability of Sec....
Prolonged incarceration without trial can lead to the violation of the fundamental right to liberty, allowing for the possibility of bail despite statutory restrictions under the NDPS Act.
The court emphasized that under Section 37 of the NDPS Act, bail cannot be granted unless there are reasonable grounds to believe the accused is not guilty and unlikely to commit further offences.
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The court underscored the stringent bail conditions under the NDPS Act, demanding substantial evidence to justify release for defendants in drug-related cases.
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