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IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KUMAR KAIT, J.
Haresh Rawal – Appellant
Versus
Narcotics Control Bureau - Respondent
Bail Appln. 1177 of 2021
Decided on : 03-06-2021
Narcotic Drugs and Psychotropic Substances Act, 1985- Section 8/20(b)/ 29- Bail application - Search and seizure of Contraband “Charas” – Drug trafficking and sale/purchase of the narcotics drugs -Total 475 grams charas was recovered from the 47 zip lock polythene packets – No public witnesses to corroborate the prosecution story - No conclusive evidence of weight and chemical analysis of the contraband recovered and also that ‘small quantity’ of charas allegedly recovered cannot be meant for further sale
Finding of the Court:
Petitioner has claimed that prior to search and seizure proceedings, he was not served with Notice under Section 50 of the NDPS Act. On the other hand, stand of NCB is that personal search of accused was not carried out, as 01 packet containing contraband recovered from petitioner was in his hands while exchanging it for money and the remaining 46 packets were recovered from the bag of co-accused and, therefore, notice under Section 50 of the Act was not required to be given. This has so been observed by the court below while dismissing petitioner’s bail application. Further, the evidentiary value of petitioner’s statement recorded under Section 67 of the Act cannot be prejudged at this stage. Moreover, question regarding call detail and chats, will be also tested during trial - one packet recovered in the hands of petitioner contained 10 gm. of contraband, which falls within the category of ‘small quantity’. Thus, the prima facie role attributed to the petitioner in the present case appears to be that he had purchased one packet containing 10 gm. charas, which essentially is ‘small quantity’
Result: Bail petition allowed
JUDGMENT :
1. The present Petition has been filed seeking bail in the case arising out of C.C. No. VIII/59/DZ/2020, registered at NCB, R.K. Puram, under Section 8/20(b)/ 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth referred to as the “NDPS Act”), which is pending trial.
2. Petitioner is aggrieved by orders dated 29.02.2021 and 23.03.2021 passed by the learned trial court, vide which his applications seeking bail have been dismissed. Vide present petition, petitioner is seeking bail in the present case.
3. The brief facts of the present case, as noted in the impugned complaint, are that on 18.12.2020, a secret information was received that one Nepali National of small built wearing yellow colour clothes will come near Gate No. 1 Metro Station East of Kailash, New Delhi between 1800-1900 hours and he might be carrying narcotics drugs for the purpose of delivery of the same to his client. Upon receipt of said information, a raiding team was constituted and after collecting seal of Narcotics Control Bureau DZU-3, testing kit, IO Kit and other necessary articles used for search and seizure proceedings, reached the spot at about 1800 hours. The raiding team tried to join independent witness by contacting two/three persons from the public but none agreed by stating their genuine problems. The surveillance mounted near Gate No.l of the metro Station observed that one person wearing yellow colour sweat shirt whose description was matching with the secret information, carrying black colour bag on his shoulder came out and met another person wearing black colour jacket. The person who was wearing yellow colour shirt handed over a small packet to the person wearing black colour jacket, who in turn gave some amount in cash to him. At this point of time both of them were apprehended by the NCB Team and they were apprised about their identity, secret information and purpose of visit.
4. During preliminary enquiries, the person wearing yellow sweat shirt disclosed his name as Madan Lama, r/o Nepal and staying at Sant Nagar, East of Kailash and second person wearing black colour jacket introduced himself as Haresh Rawal, r/o Punjabi Bagh, New Delhi. Madan Lama accepted that he was carrying charas in his bag, which he used to sell to his clients. He opened his bag in which 46 small zip lock polyethene packets and Rs. 12,000/-were found. Besides, one packet was also found in the possession of Haresh Rawal. Thus, total 47 packets were recovered.
5. Haresh Rawal (petitioner herein) accepted that he came to the spot to purchase charas from Madan Lama and he had handed over Rs. 9500/-to him for the same.
6. Out of 47 packets recovered, 22 packets were containing small disk circular shape substance, 09 packets were containing substance in small sticks shape and rest 16 packets were containing substance in the shape of small stones.
7. The substance of 22 packets was tested individually and found positive for charas. Since substance of 22 packets was found similar in colour, texture and shape as well as the fact that same was found positive for charas therefore substance of all 22 packets was collected in a polythene and weighed and it was found to be 215 grams. The said polythene was tied with string and converted in cloth pulanda Mark-A.
8. The substance of 9 packets was tested individually and found positive for charas. Since substance of 9 packets was found similar in colour, texture and shape as well as the fact that same was found positive for charas, therefore, substance of all 9 packets was collected in a polythene and found to be 95 grams. The said polythene was tied with string and converted in cloth pulanda Mark-B.
9. The substance of 16 packets was tested individually and found positive for charas. Since substance of 16 packets was found similar in colour, texture and shape as well as the fact that same was found positive for Charas therefore substance of all 16 packets was collected in a polythene and found to be 165 gram
NDPS Act –Grant of Bail - Search and seizer of contraband “Charas” – Contraband received not commercial quantity - Bar of Section 37 of NDPS Act is not applicable
Point of law: NDPS Act – Rejection of bail - Purpose of enacting the NDPS Act was to curb this menace. This purpose must be kept in mind while considering the grant of bail in matter pertaining to th....
The recovery of a commercial quantity of contraband establishes grounds to deny bail under the NDPS Act, emphasizing conscious possession principles.
The court reaffirmed that minor weight discrepancies in evidence do not undermine credibility and that substantial evidence of guilt warrants denial of bail under the NDPS Act.
NDPS Act - Rejection of Bail – Evidence and material on record is not required to be pre-judged and parties can establish their case during trial.
The main legal point established in the judgment is the requirement of reasonable grounds for believing that the accused is not guilty of the alleged offence, as emphasized under Section 37 of the ND....
The main legal point established is the interpretation of the quantity of contraband as per the NDPS Act and its impact on the eligibility for bail.
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