The main legal point established in the judgment is the need to prove a charge of conspiracy and the conditions for releasing an accused on bail under section 37 of the NDPS Act.

JUDGMENT :

1. Present petition has been filed under section 439 Cr.P.C. for grant of regular bail in pursuance to FIR No.261/2020 registered at Police Station Samaipur Badli for the offences punishable under sections 29/21/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985.

2. Case of the petitioner is that bar of section 37 of NDPS Act is not applicable in the present case, therefore, this court may exercise its discretion and enlarged the petitioner on bail. The substance alleged to have been recovered from the petitioner is 112 gms. of heroin and 152 gms. from the co-accused Ravi Kiran. Accordingly, it is evident that the contraband recovered from the petitioner was intermediate and as per the notification of intermediate quantity, the bar under section 37 of NDPS Act will not be attracted in the present case as the same is applicable only in offences involving commercial quantity.

3. Counsel for the petitioner further submits that both the accused persons were apprehended separately and the contraband was also recovered separately, wherein there was no element of abetment or criminal conspiracy between the petitioner and the co-accused to commit the alleged offence. To strengthen his arguments, counsel for the petitioner relied upon the case of Amar Singh Ramjibhai Barot vs. State of Gujarat: (2005) 7 SCC 550 delivered by Hon’ble Supreme Court of India vide judgment dated 19.09.2005 in Crl.A.1218/2005 and relevant paras are reproduced as under:

“8. Although, at first blush, the argument of the learned counsel appeared attractive, on careful appreciation of the facts on record we are satisfied that the High Court judgment is fully justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted.

9. The High Court was justified in its conclusion that the appellant could not have been punished under Sections 17 and 18 of the NDPS Act.

10. The High Court has not merely rested its conclusion on Section 29 and the fact of adding together the recoveries made from the appellant and the other accused, deceased Danabhai Virabhai Rabari, for the purposes of arriving at a quantity of recovery of opium more than the “commercial quantity”. The High Court has carefully analysed the facts before it and arrived at the right conclusions as we shall see presently.

11. The appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the appellant was “opium as described in the NDPS Act” containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample.”

4. Case of prosecution is that the petitioner was arrested on 10.04.2020 and accordingly, search was conducted and one polythene containing heroine 112 gms was recovered from petitioner and 152 gms was recovered from co-accused Ravi Kiran. Both the accused persons had disclosed that they had come from Punjab to Delhi together only to buy drugs and they had bought the recovered drug from Dwarka Mor from a Negro and were going back to Punjab. The CDRs of mobile numbers of the accused persons was obtained and it was found that they came to Delhi in active connivance to purchase the contraband and were going back to Punjab. The mobile number 7527826081 was being used by the petitioner and the mobile number 6280652523 was being used by the co-accused and as per the call details and location record of both the above mentioned n