Point of Law: Supreme Court diluted rigour under Section 37 in a case involving commercial quantity of narcotic substance on ground that accused had no criminal antecedents and he was in custody for 2 ½ years and also taking note of the fact that trial could not be materialized within a reasonable time.

ORDER :

This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking regular bail and the petitioner is the 5th accused in crime No.890/2020 of Kalloorkad Police Station, where the prosecution alleges commission of offences punishable under Sections 8(C), 20(b)(ii)(C), 27(A), 29, 31(1) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act').

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the detailed report and the case diary as such, placed by the learned Public Prosecutor.

3. The prosecution case is that, on 25.11.2020 the detecting officer got reliable information about concealment of large quantity of ganja at building bearing number XI/38 of Ayavana grama panchayat, owned by one Shiju George which was leased out to the 1st accused in this crime. Thus the Officer and party proceeded to the place in the morning, but that building was found locked. Thus the said Shiju George, the owner of the building, was summoned and using the duplicate key provided by him, the building was opened and 39.845 kilogram of ganja in 17 packets were seized. Pursuant to recovery, crime alleging commission of the above offences was registered. Thereafter accused Nos.1, 3 to 5 were arrested. The second accused, who is a close associate of the 1st accused, obtained anticipatory bail from this Court so that he was not arrested. The petitioner, who is the 5th accused, was arrested on 28.03.2021 and he has been in judicial custody thereafter, seeks regular bail in this case.

4. The learned counsel for the petitioner would submit that, the petitioner is innocent and he has been in custody for the last more than two years. Further, the petitioner has no criminal antecedents and all other accused in this crime were released on bail. Highlighting the petitioner's custody from 28.03.2021 and also on the submission that the trial could not be materialized within a reasonable time, the learned counsel for the petitioner pursued the relief of regular bail to the petitioner.

5. Whereas the learned Public Prosecutor strongly opposed grant of bail on the submission that commercial quantity of contraband was seized from the petitioner and therefore this Court cannot grant regular bail to the petitioner, without satisfying the twin conditions provided under Section 37 of the NDPS Act.

6. In this connection, 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, assumes significance. 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.

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