Joint recovery of contraband from co-accused cannot be aggregated to classify as commercial quantity under the NDPS Act; individual quantities must be assessed.

JUDGMENT :

1. The present application under Section 483 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( BNSS ) has been filed by the petitioner/applicant, seeking Regular Bail in FIR No.93/2024 registered at Police Station Rajouri Garden for the offences punishable under Section 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

CASE OF THE PROSECUTION

2. The case of the prosecution would reveal that on 02.02.2024, SI Rajender Prasad, posted at the Narcotics Squad/West District, Delhi, received secret information through an informer that a person named Khokan Burman, along with an associate, would be supplying Ganja in Woodland Park in Tagore Garden between 9:00 and 10:00 pm. SI Prasad then informed Inspector Ishwar Singh I/C Narcotics Squad at around 8:30 pm, who then called SI Prasad back and intimated him that the said information was relayed to the ACP, who has instructed him to take appropriate action. A raiding party was then constituted and the raiding party, along with the informer, reached the spot where the petitioner was to be apprehended.

3. SI Prasad provided the secret information to four public persons; however, they all left the spot without providing their names or addresses, citing their own legitimate compulsions. At around 9:40 pm, two suspects, one carrying a black bag in both his hands and the other carrying a grey bag on his back and holding a red bag in his right hand came towards Tagore Garden from the Subash Nagar side. The informer then recognized one of the two suspects, Khokan Burman, and on such information being given, the raiding party apprehended the two suspects. The two suspects were then identified, the one with the black bags in both the hands being Khokan Burman, and the other with the carrying a grey bag on his back and holding a red bag in his right hand being the petitioner/applicant herein.

4. On apprehending the two, they were informed by SI Prasad that he had received secret information that they were involved in the supply of Ganja and possessed the same. Both of them were separately informed about their legal rights, which are whether they wished to by searched in the presence of the nearest Gazetted Officer or Magistrate, for which they would have to be taken to the nearest Gazetted Officer or Magistrate, or they would be called to the spot. They were also informed that they could search the raiding party and police vehicle before getting their search done. Both the accused were given a copy of the notice under Section 50 of the NDPS Act in Hindi Language, explaining the meaning of Gazetted Officer and Magistrate. Both the accused then informed the raiding party that they could read Hindi, however, not write the same. They both then replied to the notice in mixed language that is, Hindi and English and waived their right to be searched by a Gazetted Officer or Magistrate.

5. A total of 19.949 kgs of Ganja was recovered from the accused Khokan Burman and a total of 12.388 kgs of Ganja was recovered from the petitioner, totalling upto 32.349 kgs. The contraband was then seized, stored and sealed by the raiding party. A rukka along with sealed exhibits and the Notice under Section 55 of the NDPS Act was handed over to HC Dinesh for registering the case, pursuant to which the aforementioned FIR came to be registered.

6. The petitioner has been in Judicial Custody since 03.02.2024 and his Regular Bail application filed before the Additional Sessions Judge/Special Judge (NDPS), West District, Delhi (Trial Court) came to be dismissed on 13.08.2024, leading him to approach this Court.

SUBMISSIONS OF THE PETITIONER

7. The learned counsel for the petitioner submitted that the investigation in the present case is complete and the Charge-Sheet has been filed, therefore, custody of the petitioner is not required. She submitted that the petitioner has undergone about 1 year and 2 months of custody and therefore, he be released on Bail.

8. The learned