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2024 Supreme(Online)(GUJ) 23246
HIGH COURT OF GUJARAT
MR. JUSTICE M. R. MENGDEY, J
VIVEK PATEL S/O DEVANAND PATEL – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER CHARGESHEET) NO. 14064 of 2024
MR DAIFRAZ HAVEWALLA(3982), MR KARTIK V PANDYA(2435), MR. SOHAM JOSHI, APP
Possession of LSD in commercial quantity established; Section 50 of NDPS Act not applicable as no body search conducted.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c), 20(b)(ii)(A), 22(c), 27(a), 29, and 50 - Application for bail - Applicant arrested for possession of LSD and ganja - Prosecution claims possession of commercial quantity - Applicant contends possession was for personal use and breaches of mandatory provisions occurred - Court finds that the Applicant was caught accepting a parcel containing contraband, and Section 50 was not applicable as no body search was conducted. (Paras 1, 3, 6, 6.2, 6.3, 6.4)
(B) Bail - Considerations for granting bail - The court must consider the nature of the offence and the quantity of contraband involved, as well as the compliance with statutory provisions. (Paras 5, 6.4)
Facts of the case:
The Applicant was arrested for receiving a parcel containing LSD and was found in possession of additional contraband at his residence. The Applicant argued that the quantity was not commercial and that he was an addict, not a dealer.
Findings of Court:
The court found that the Applicant was in possession of a commercial quantity of LSD and that the provisions of Section 50 of the NDPS Act were not applicable.
Issues: The main issues were whether the Applicant's possession constituted a commercial quantity and whether the breach of Section 50 affected the case.
Ratio Decidendi: The court ruled that the Applicant's possession of LSD was indeed a commercial quantity, and the breach of Section 50 did not apply as no body search was conducted.
Result: Application dismissed.
ORAL ORDER
1. The Applicant has filed this Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for enlarging the Applicant on Regular Bail in connection with FIR being C.R. being NCB Case No. NCB/AZU/CR-01/2024 before the District and Sessions Court at Surat for the offences punishable under Sections 8(c), 20(b)(ii) (A), 22(c), 27(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS").
2. Heard learned Senior Advocate Mr.R.R.Marshal appearing with learned Advocate Mr. Daifraz Havewalla for the Applicant, learned APP Mr. Soham Joshi for the Respondent – State and learned Advocate Mr. Kartik V. Pandya appearing on behalf of Respondent No.2 - Narcotics Control Bureau ("NCB").
3. Learned Advocate for the Applicant has submitted that the in the present offence the investigation is over and charge sheet is filed. The Applicant has been arrested in connection with the present offence on 2.2.2024 and since then the Applicant is in custody. He submitted that; as per the case of prosecution itself, the NCB had received some secret information and, on the basis of the said secret information, a raid was carried out by the officers of the NCB, and the present Applicant was found receiving a parcel from a Postwoman, which contained LSD. Thereafter, the search of the house of the present Applicant was also carried out by the team of NCB, and the other stock of LSD was also found out from the house of the Applicant along with 134 gms. of ganja. As per the case of prosecution, total stock of 0.440 gms. with Blots had been recovered in total. The prosecuting agency has been projecting the said stock to be a commercial quantity. However, the said substance had been weighed with Blots. Had it been weighed without Blots, the weight would have been much lesser, and therefore, the same cannot be considered to be a commercial quantity. He further submitted that the Applicant had possessed the said contraband substance only for his consumption and had never indulged into sale of the said substance and, there is sufficient material collected by the investigating agency, which indicates that the Applicant was not involved in sale of any such substance. The Applicant himself is the addict of the said substance and, in the past, had also undertaken a rehabilitation course for deaddiction. He submitted that the investigating agency has caused breach of several mandatory provisions of the NDPS Act, inclduing the provisions of Section 50 of the NDPS Act and, in the wake of the said breach, there is no chance of the Applicant being convicted for the said offence. He submitted that the Applicant has a bright future ahead of him. He has further submitted that the Applicant has good reputation in the society and no useful purpose would be served by keeping the applicant in jail for indefinite period. It is further contended that the applicant is ready and willing to abide by all the conditions that may be imposed by this Court if released on bail.
3.1 Learned Senior Advocate Mr. R.R.Marshal seeks to rely upon the following judgments in support of his submissions:
(i) Jagathram Joy v. State of Kerala - Bail Application No. 2530 of 2022
(ii) Tofansingh v. State of Tamilnadu - 2020 (0) AIJEL SC 66640
(iii) Ranjankumar Chadha v. State of Himachal Pradesh - 2023 (0) AIJEL SC
72581
4. Per contra, learned APP has opposed the present application for grant of regular bail and submitted that looking to the nature of offence, this Court may not exercise the discretion in favour of the applicant and the Application may be dismissed.
5. Learned Advocate Mr. Kartik V. Pandya appearing on behalf of Respondent No.2 - Narcotics Control Bureau has also opposed the Application. He submitted that the present Applicant was found in possession of 0.440 Grams of LSD. The commercial quantity for the substance in question is 0.1 Gram. Thus the Applicant was found in possession of contraband substance which was much more than the prescribed commerc
