The court ruled that bail cannot be granted under the NDPS Act unless there are reasonable grounds to believe the accused is not guilty and unlikely to commit further offences.

ORDER :

1. This bail application has been filed by the accused petitioner under section 439 CrPC in connection with FIR No. 0707/2023 registered at Police Station Shivdaspura, District Jaipur City (South) for the offence punishable under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’).

2. The FIR No. 0707/2023 at Police Station Shivdaspura, District Jaipur City (South) was registered after search of vehicle Honda Amaze Car and during the course of search, contraband-Methylene Dioxy Methamphetamine (for short ‘MDMA’) weighing 25.41 gms. was found.

3. Counsel appearing for the accused petitioner submitted that the Narcotic Drug which was seized from the possession of the petitioner was for self consumption. He further submitted that there is violation of Section 42 of the Act of 1985 because the vehicle from which the contraband has been seized is a private vehicle and the Officer who seized the contraband is of range of Sub Inspector, who is not authorized. He further submitted that there is violation of Section 43 of the Act of 1985 also.

4. Counsel appearing for the accused petitioner further submitted that the search of the vehicle of the petitioner was made at about 7:10 PM i.e. after sunset as the date of seizure is 16.10.2023 and on the relevant date the sun sets before 06:30 PM.

The search and seizure was made by the unauthorized Officer without taking the petitioner to the nearest Gazette Officer of any of the Department or to the nearest Magistrate.

5. Counsel appearing for the petitioner has also argued that there is clear non-compliance of provision of Section 52A of the Act of 1985. He submitted that the seizure of the alleged contraband was made on 06.10.2023 and the application was sent to the concerned Magistrate on 16.10.2023 and the samples were sent to the FSL on 09.11.2023 and no explanation is there on record for such an inordinate delay. In support of his contentions, counsel appearing for the accused petitioner has placed reliance upon various judgments.

6. Mr. Chandragupt Chopra, learned Public Prosecutor appearing for the State has submitted that there is a recovery of contraband from the vehicle which was in possession of the petitioner and the petitioner was arrested on the very same day i.e. on 06.10.2023. He further submitted that the Sub Inspector is authorized to conduct the search and seizure. It is further submitted by him that 5 other criminal cases are pending against the petitioner which shows his conduct and the custody of the accused petitioner is also not of a lengthy period.

7. The learned Public Prosecutor has also referred the provision of section 37 of the Act of 1985 which clearly speaks that no person accused of an offence punishable for the offences under sections 19 or section 24 or section 27A and also for the offences involving commercial quantity shall be released on bail subject to the conditions given under sub-clause (b) thereof. He also stated that the quantity of contraband recovered from the possession of the petitioner is more than the quantity notified by the Government as commercial quantity.

8. Considered the submissions made by the learned counsel appearing for the accused petitioner as well as learned Public Prosecutor and also gone through the judgments cited from both the sides.

9. It is not in dispute that after making search of the vehicle of the petitioner 25.41 gms. drug was seized which was detected as MDMA and the accused petitioner was arrested at the very same time.

10. Now the issues for consideration before this Court is:

“(i) Whether a person accused of possessing the Narcotic Drug or Psychotropic Substances more than the commercial quantity can be released on bail without there being satisfaction of the Court that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail as required under Section 37 of the Act of 1985?

(ii) Wheth