Point of Law: Court diluted rigour under Section 37 of the NDPS Act on the ground that petitioner/accused therein had no criminal antecedents and he had been in custody.

ORDER :

These are bail applications filed by accused 1 and 2 in Crime No.112 of 2022 of Malappuram Police Station, Malappuram, under Section 439 of the Code of Criminal Procedure.

2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the case diary and report of the Investigating Officer placed by the learned Public Prosecutor.

3. The prosecution case is that at about 22.05 hours on 16.02.2022, when the Sub Inspector of Police, Malappuram Police Station, was engaged in vehicle checking, it was found that ganja was transporting in a TATA Tiago car bearing Registration No.KL 71 F 6107. Accordingly, the vehicle was searched and 22.125 kg. of ganja was seized. Pursuant to recovery, accused Nos.1 and 2 were arrested and crime alleging commission of offences punishable under Section 20(b)(ii)C and 29 of the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act' for short hereinafter) was registered.

4. The learned counsel for the petitioner pressed for grant of bail on the submission that the petitioners have no criminal antecedents and they have been in custody from 16.02.2022 onwards on the allegation that they had possessed 22.125 kg. of ganja, just above intermediate quantity. It is submitted by the learned counsel for the petitioners that even though investigation of this crime was completed, trial not yet started and there is no likelyhood to complete the trial within a reasonable time. Further, the petitioners have no criminal antecedents. Therefore, the petitioners may be released on bail, diluting the rigour under Section 37 of the NDPS Act.

5. Whereas the learned Public Prosecutor strongly opposed grant of bail on the submission that commercial quantity of contraband was seized from the petitioners and in such a case, this Court cannot grant regular bail to the petitioners, without satisfying the twin conditions provided under Section 37 of the NDPS Act. In this case, red-handed recovery of 22.125 kg. of ganja could be seen, prima facie. Therefore, definitely, the rigour under Section 37 would apply.

6. In this connection, the learned counsel for the petitioners placed an unreported decision of the Apex Court in Special Leave Appeal (Crl.) No.6690/2022 [Dheeraj Kumar Shukla v. The State of Uttar Pradesh] dated 30.05.2022. It is submitted by the learned counsel for the petitioners that in the said case, the Apex Court diluted the rigour under Section 37 of the NDPS Act on the ground that accused had no criminal antecedents and also taking note of the custody of the accused therein for a period of 2 ½ years. Therefore, applying the same ratio, Section 37 of the NDPS Act may be diluted in this case and the petitioners, who are first time offenders, may be released on bail.

7. In para.3 of the above order, the Apex Court held as under:

“3. xxx xxx xxx It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.”

8. In a recent decision of the Apex Court reported in [(2023) 1 Supreme 670], Rajuram v. State of Bihar, the Apex Court granted bail to an accused involved in possession of commercial quantity of contraband. In the said case, the Apex Court diluted the rigour under Section 37 of the NDPS Act on the ground that the petitioner/accused therein had no criminal antecedents and he had been in custody from 28.12.2017 onwards. In para.6 it has been held as under:

“6. It is true that trial has commenced and out of 8 witnesses, 2 witnesses have reportedly been examined by the Trial Court. However, the conclusion of trial will still take some time. The petitioner has no criminal antecedents.