IMPORTANT POINT
The court reaffirmed that under Section 37 of the NDPS Act, bail cannot be granted unless the accused can demonstrate reasonable grounds for believing they are not guilty and are not likely to commit further offenses while on bail.

JUDGMENT/ORDER

PRAKASH D.NAIK,J. - The applicant is seeking bail in Cr. No. 14/2022 registered with ANC Police Station North Goa, for offences under Ss. 22(c) and 21(b) of the NDPS Act.

2. The prosecution case is that on 27/8/2022 the staff of Anti Narcotic Police Station, Panaji, Goa along with two panchas conducted a narcotic raid at 'Besides Green Fingers Nursery', Calangute, Bardez, Porba Waddo, North Goa and apprehended the accused/applicant. He was found in possession of 40gms of MDMA, 60gms of Heroin and 50 gms Ecstasy powder, all worth Rs.15,00,000.00. FIR was registered on 27/8/2022. The applicant was arrested on the same day and since then he is in custody.

3. Learned advocate for the applicant submitted that the applicant is in custody from 27/8/2022. Although the alleged contraband was seized on 27/8/2022, the CA report is not on record. There is violation of Rule 14 of the NDPS Rules. Under Rule 14 the report was required to be sent by the CFSL within 15 days from the date of receipt of samples. In the absence of the CA report the applicant cannot be compelled to remain in custody till the trial is over. The applicant is entitled for speedy trial. Chargesheet is filed. The applicant cannot be detained in custody for indefinite period.

4. Learned advocate for the applicant has relied upon the decision of the apex Court in the case of Rabi Prakash v. The State of Odisha Petition for Special Leave to Appeal (Crl.) No. 4169/2023 delivered on 13/7/2023 wherein the accused facing prosecution under the NDPS Act was directed to be enlarged on bail on the ground of long incarceration in custody.

5. Mr. Pravin Faldessai, learned Additional Public Prosecutor for respondent No. 1 submitted that the applicant was found in possession of contraband viz., 40gms MDMA, 60gm Heroin and 50gms of Ecstasy powder. Although CA report is not received, field test was conducted which indicated that the aforesaid drugs was found in possession of the accused. In view of rigors of Sec. 37 of the NDPS Act the applicant is not entitled for bail. No ground is made by the applicant to overcome the embargo under Sec. 37 of the NDPS Act. The applicant is not entitled for bail on the ground of alleged violation of Rule 14 of the NDPS Rules.

6. The application for bail preferred by the applicant before the Sessions Court, Panaji has been rejected vide order dtd. 9/5/2023.

7. The prosecution case as stated above is that the applicant was found in possession of the contraband as described hereinabove. There is no CFSL report on record. However, field test was done with a drug detection kit which gave positive results for MDMA, Heroin and Ecstasy. In view of Sec. 37 of the NDPS Act, the applicant is not entitled for bail.

8. Learned counsel for the applicant has relied upon the decision of the apex Court referred to hereinabove wherein bail was granted to the accused who was found in possession of Ganja which was recovered from a truck. The apex Court had considered the fact that the accused has been in custody for more than 3 and half years and hence it was observed that prolonged incarceration generally militates against most precious fundamental rights guaranteed under Article 21 of the Constitution and in such a situation the conditional liberty must override the statutory embargo created under Sec. 37(1)(b)(ii) of NDPS Act.

9. In the present case, the prosecution case rests on the possession of the contraband viz., MDMA, Heroin and Ecstasy powder. In the present case, field test prima facie determines the nature of the contraband found in possession.

10. NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 were brought into force on 23/12/2022. Rule 14 relates to Expeditious Test. It provides that the chemical laboratory shall submit its report to the Court of Magistrate with a copy to the investigating officer within fifteen days from the date of receipt of the sample. Provided that where quantitative analysis requires longer time, the results of the q