IMPORTANT POINT
Bail – Parameters for grant of bail are narrow in NDPS offences.

ORDER

This Criminal Petition is filed seeking the Court to enlarge the petitioner, on bail, who is arrayed as accused No.7 in F.No.DRI/HZU/48D/ENQ-48 (INT-39)/2022 of Directorate of Revenue Intelligence, Hyderabad, Zonal Unit, registered for the offences under Sections 8(c) r/w 22, 23, 27-A, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS’ Act).

2. The case of the prosecution is that accused Nos.1 to 8, including petitioner/accused No.7 were involved in the production, manufacture, possession and warehousing etc., of about 136.275 kgs of Mephedrone, a psychotropic substance, without valid license/permit/authorization. As such, complaint was registered against the accused for the said offences.

3. Heard Sri Mohd. Ismail Khan, learned counsel appearing on behalf of the petitioner as well as Sri Dominic Fernandas, learned Senior Standing Counsel for CBIC appearing on behalf of the respondent – State.

4. Learned counsel for the petitioner submitted that petitioner is innocent and had been falsely implicated in the case, and that the co-accused, who were allegedly on the same footing, had already been granted bail and that there were serious procedural lapses, including violation of Section 57 Cr.P.C. and Article 21 of the Constitution, since the petitioner was kept in custody for more than 24 hours before being produced before the Magistrate. He contended that the seizure and panchnama were doubtful and appeared to be prepared later, noting inconsistencies such as mention of full names and a pre-typed file number before registration of the FIR, as well as delayed deposit of the alleged contraband and that violation of Section 42 NDPS Act due to lack of authorization and supervision from senior officers. The petitioner is in jail from 22.12.2022. Therefore, he prayed the Court to grant bail to the petitioner by allowing this criminal petition.

5. Learned Senior Standing Counsel filed counter vehemently opposing the petition. He submits that the petitioner is directly involved in the activity of manufacture of Mephedrone and that the quantity of Mephedrone seized is a commercial quantity and if the petitioner is released on bail, he may indulge in similar offences. Therefore, he prayed the Court to dismiss the criminal petition.

6. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that the police seized 136.275 kgs of Mephedrone, and the said contraband is huge commercial quantity. That being so, it is relevant to extract Section 37 of the NDPS Act, which reads as under:

“37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 1[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

7. In view thereof, it is clear that Section 37 of the NDPS Act mandates that offences involving commercial quantities be non-bailable, requiring reasonable grounds to believe the accused is not guilty and unlikely to commit further offences while on bail. Further the petitioner was caught red handed while manufacturing Mephedrone at the place of offence.

8. Given the s