Mumbai, August 30, 2021: While releasing the applicants on bail, the Bombay High Court has ruled that the rigors of Section 37 of the NDPS Act does not get attracted when there is no material with the prosecution to reflect that the quantity of contraband seized is commercial quantity.
The Single Bench of Justice Bharti Dangre has observed that the applicants in the present case are not attributed with any antecedents of being involved previously in consumption or use of drugs and psychotropic substance.
Considering their young age where they are in a stage of reformation, they deserve one opportunity by restoring their freedom, nevertheless with a forewarning that if they indulge in such activity in future, the law will not spare them, added the Bench.
Justice Dangre also made it clear that in any case, at the outcome of the trial, if the applicants are found guilty, then they shall undergo the prescribed penalty for indulging in narcotic drugs and psychotropic substance as prescribed under the NDPS Act.
The observation came pursuant to the application filed by two boys Harsh Shah and Neeraj Surana seeking bail in connection with an FIR for offences u/s 20, 21 &25 of NDPS Act, who were found to be in possession of cocaine, ganja and charas.
The counsel for the applicant submitted that there was no compliance with the mandatory statutory provisions of the NDPS Act and that the substance recovered was not even in commercial quantity.
On the other hand, the prosecution pleaded that there was sufficient material collected during the investigation which clearly showed participation of the accused in contravention of the NDPS Act.
The counsel for the State submitted that the present is not a case, where commercial quantity is involved, but there is a likelihood of the same since traces of cocaine is found in the swimming pool in which the accused persons have allegedly thrown cocaine powder at the time of raid.
The report of the Chemical Analyzer records positive result for detection of cocaine in the two samples (1 liter each) drawn from the water from the swimming pool. However, the quantity of cocaine in the water present in the swimming pool was not ascertained, found the High Court.
Moreover, the Court also observed that the panchanama did not record that the cocaine was thrown by any of the Applicant in the swimming pool and, even if it was so done, another moot question would be whether the Applicant could be attributed with the charge of ‘possession’.
Justice Dangre further opined that Section 50 of the NDPS Act applies only in case of search of a person. However, merely if a bag carried by a person is searched without there being a search of his person, Section 50 of the NDPS Act will have no application.
Therefore, the High Court directed the applicants to be released on bail subject to a condition that their involvement in drugs in any manner in future would entail cancellation of the bail, on an application being moved by the prosecution to that effect.