The stringent conditions for granting bail to drug traffickers under Section 37 of the NDPS Act and the need to prevent their nefarious activities.

JUDGMENT

Rajnish Bhatnagar, J. - By way of this order, I shall dispose of the present bail application filed under Section 439 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the petitioner for grant of regular bail in case FIR No. 151/2020 registered under Section 20/25 of the NDPS Act at P.S. Crime Branch.

2. Briefly stated, the allegations against the petitioner are that on the basis of a secret information received on 05.10.2020, a team was constituted by SI Sushil Kumar and raid was conducted at Village Mukhmelpur, Cut Mukhmelpur, Hiranki, Burari Pusta which resulted in the apprehension of two persons Israil & Rafiq (present petitioner) who were approaching Delhi in a Mahindra Pick UP bearing No. DL 1CX 6566. Notice U/s 50 of the NDPS Act was issued to both of them. Information regarding apprehension of the said persons was shared with ACP/SOS-II who reached at the spot and in his presence the search was carried out. During physical search of accused Rafiq @ Fikku (present petitioner), contraband (Charas) weighing 555 grams was recovered from his right pocket of Jeans paint while during the search of Israil contraband (charas) weighing 955 grams was recovered under his shirt which was wrapped by accused Israil with the help of a white cloth.

3. Accordingly, a case U/s 20/25 of the NDPS Act was registered and the petitioner alongwith the co-accused was arrested on 06.10.2020. During the course of investigating, according to the prosecution, the conspiracy to bring the contraband in Delhi NCR for selling was established and subsequently Section 29 NDPS Act was added. As per the case of the prosecution on further interrogation of the petitioner and his co-accused they disclosed that they used to bring the contraband by hiding in vegetables, which they carry in their vehicle.

4. The state has filed the status report. I have heard the Ld. counsel for the petitioner, Ld APP for the State and perused the status report filed by the state.

5. It is submitted by the Ld. counsel for the petitioner that the petitioner is 19 years old and 555 Gms. of Charas which is less than the commercial quantity is alleged to have been recovered, therefore, rigors of Section 37 of the NDPS Act would not be applicable. He further argued that the Ld. Trial Court has erroneously clubbed together the recoveries effected from the petitioner and his co-accused and came to the conclusion that the recovered quantity is more than commercial quantity and thus there was a bar of Section 37 of the NDPS Act. He further submitted that there are violations of mandatory provisions of Section 42 of the NDPS Act and he relied upon State of Rajasthan Vs. Jagraj Singh, (2016) 11 SCC 687.

6. On the other hand, Ld. APP for the State has opposed the bail application by contending that the petitioner and his co-accused under a well hatched conspiracy have brought the contraband to Delhi and he further submitted that the co-accused Israil has criminal antecedents and FIR U/s 20 of the NDPS Act had been registered against him on 29.09.2018 and another FIR U/s 21 of the NDPS Act had been registered against him on 12.06.2019 and he is a habitual offender. He further submitted that co-accused Israil being a habitual offender knows how to manipulate things and for this reason he and his co-accused split the contraband into two so as to come out of the rigors of Section 37 NDPS Act and to ensure that the recovered quantity from each of them falls below the commercial quantity. He further submitted that as far as the question of violation of mandatory provision of Section 42 of the NDPS Act is concerned, the same is a matter of fact and needs to be proved during the trial. He further submitted that GD entry No. 0011A was recorded on the basis of the secret information which is due compliance of Section 42 of the Act.

7. Ld. APP for the State has relied upon " Deonandan Roy Vs. State,2016 SCCOnLineCal 2463" & "Dipak Kr. Roy @ Dipak Roy Vs. State,2016 SCCOnLineCal 2464", " Abu Basar B