Point of Law: Search and seizer of Contraband - Unless two conditions mandated under Section 37 of the NDPS Act are satisfied, an accused who is involved in offence relating to commercial quantity of contraband, cannot be enlarged on bail.

JUDGMENT :

1) Petitioner has invoked the jurisdiction of this Court under Section 439 of J&K Cr. P. C seeking bail in his favour in a case arising out of FIR No.264/2020 for offences under Section 8/20 of the Narcotic Drugs and Psychotropic Substances, Act, (for short ‘the NDPS Act’) registered with Police Station, Saddar, Srinagar. After investigation of the FIR, charge sheet stands already laid before the Court of 2nd Additional Sessions Judge, Srinagar. Pursuant to framing of charges against the petitioner, trial of the case is in progress.

2) As pr the case of the prosecution, on 05.11.2020, while the officials of Police Station, Saddar, Srinagar, were on patrolling duty near Natipora Chowk, Srinagar, they spotted a person moving in suspicious circumstances. The said person tried to escape from the spot but he was nabbed by the police personnel. The person was identified as accused/petitioner herein and upon his search, one bag was seized from his possession which contained thirty strips (720 capsules) of Spasmoproximio Plus. Upon questioning, the accused/petitioner could not justify the possession of the aforesaid drug and, accordingly, the recovered capsules were seized and the FIR came to be registered against the accused/petitioner.

3) During investigation of the case the petitioner was taken into custody. The sample of the seized capsules was sent to FSL, Srinagar, for seeking expert opinion. After receipt of the opinion from the FSL, the capsules were found to contain Tramadol, which is a psychotropic substance notified in terms of Notification No.S.O.1761(E) dated 26.04.2018 issued by the Central Government. Thus, after investigation of the case, offences under Section 8/21 of NDPS Act were found established against the petitioner and the charge sheet was laid before the trial court. On 07.06.2021, the petitioner was charged for the offences under Section 8/21 of NDPS Act, whereafter trial of the case started. It appears that by now statements of as many as four prosecution witnesses have been recorded by the trial court.

4) It appears that during trial of the case, petitioner had approached the trial court seeking bail, but the application has been dismissed by the learned trial court vide its order dated 29.12.2020.

5) The petitioner has sought bail on the grounds that the recovered contraband falls within intermediate category, as such, rigor of Section 37 of the NDPS Act does not apply to the instant case; that even on merits there are contradictions and inconsistencies in the statements of eye witnesses and, as such, petitioner deserves to be enlarged on bail and that on health grounds also, petitioner deserves to be admitted to bail.

6) Respondents have resisted the bail application on the grounds that petitioner is involved in an offence which is against society and if he is enlarged on bail, it will be prejudicial to the future of young generation which is already reeling under the menace of drug trafficking. It has been further contended that if petitioner is admitted to bail, there is every apprehension that he will indulge in similar activities.

7) I have heard learned counsel for the parties and perused the material on record including the trial court record.

8) The allegation against the accused/petitioner is that commercial quantity of contraband drugs was recovered from his possession. According to the petitioner, the quantity of contraband alleged to have been recovered from his possession falls in the category of intermediate quantity. The assertion of petitioner is factually incorrect, inasmuch as petitioner has been found in possession of 720 capsules, with each capsule containing at least 400 mg of mixture of different chemicals, in which one of the chemicals is Tramadol Hydrochloride, which is a substance falling under the category of psychotropic substances in terms of Notification No.S.O. 1761(E) dated 26.04.2018 issued by the Central Government. Even though the weight of Tramadol in 720 capsules reco