In CRM-M-20629-2022-PUNJ HC- Rigors of Sec.37 of NDPS Act can be relaxed to certain extent and accused can be granted bail despite allegation of possession of commercial quantity of contraband, if there is delay in conclusion of trial: P&H HC Justice Jasjit Singh Bedi [31-05-2022]

Read Order: Ghanso @ Kalo v. State of Punjab

Monika Rahar

Chandigarh, May 31, 2022:  While granting bail to an NDPS Act accused, who was present in a car from which recovery of 500 Grams of Heroin was effected, the Punjab and Haryana High Court has held that the rigors of Section 37 of the NDPS Act can be relaxed to an extent and the prayer of the accused for grant of bail can be considered despite the fact that the petitioner was found in possession of commercial quantity of contraband on account of delay in the conclusion of the trial.

The petitioner had been in custody since August 29, 2019. The bench of Justice Jasjit Singh Bedi came to the above conclusion in light of the fact that the Supreme Court has time and again considered the grant of regular bail in cases involving commercial quantity where there is a delay in the conclusion of the trial. 

The Court was dealing with a petition under Section 439 Cr. P.C. was for the grant of regular bail in an FIR registered against the petitioner under Sections 21 and 29 of the NDPS Act. 

The above-said FIR came to be registered on the basis of secret information that Lakho Rani, Ghanso @ Kalo (present petitioner) and Sukhwinder Singh @ Binder were doing the business of selling Heroin in connivance with each other. The said Heroin was allegedly supplied by Jassu and all the three accused were coming towards Sangrur Basti for supplying the same in their car. 

Based on the said information, the Police Party intercepted a swift car which was being driven by Sukhwinder Singh @ Binder (since granted bail) and the owner of the car was said to be the present petitioner. 500 Grams of Heroin was recovered from the car. 

The Counsel for the petitioner submitted that there was violation of Section 42 of the NDPS Act and the petitioner could not be said to be in conscious possession as the bag was lying near the handbrake of the car and the petitioner was sitting on the rear seat. He further contended that the petitioner was of the age of a 37 years old widow who was solely responsible for maintaining her children. 

He lastly contended that the petitioner was in custody since August 29, 2019 and that only three out of the the total 32 prosecution witnesses were examined so far. Thus, he prayed for the grant of bail to the petitioner. 

On the contrary, opposing the bail plea, the Counsel for the State submitted that the vehicle belonged to the petitioner and admittedly, the recovery was effected from the said vehicle and it would be a matter of adjudication during the trial as to whether the petitioner was in conscious possession or not. 

After considering these rival submissions, the Court outrightly addressed the question of whether regular bail can be granted in cases involving commercial quantity where there is a delay in the conclusion of the trial. 

On this question, the Court made reference to the Apex Court in the case of Chitta Biswas @ Subhas Vs. The State of West Bengal Crl. Appeal No(s)245/2020 (@ SLP(Crl.) NO.8823/2019 Decided on 07.02.2020 where the recovery was of commercial quantity of phensedyl cough syrup and 04 out of 10 witnesses were examined, the Top court granted the concession of bail after the accused was in custody for approximately 1 year and 7 months. 

Reference was also made to a case where the recovery was of 3Kg 285 grams of Charas and the Supreme Court granted bail after the accused underwent a total custody period of 2 years and 7 months. Further reliance was placed on Vipan Sood Vs. State of Punjab & Anr. CRMM-20177-2020(O&M) Decided on 25.02.2021 wherein the concession of regular bail was granted to the petitioner from whom there was a recovery of 3.8 Kgs of Charas after he underwent a total custody period of 01 year and 07 months. 

Lastly, attention was invited to the case of Mahmood Kurdeya Vs. Narcotics Control Bureau Crl. Appeal No.1570/2021 (@ SLP (Crl.) No.7085/2021) Decided on 07.12.2021 where the recovery was of huge quantity of contraband and the accused was granted the concession of bail after he underwent 3 years and 3 months of custody. 

From perusal of the aforementioned judgments, the High Court observed that the has considered and granted the concession of regular bail in cases where the accused has undergone a substantial period of custody despite the rigors of Section 37 of the NDPS Act.

Therefore, in light of the above, the Court observed that on account of delay in the conclusion of the trial, the rigors of Section 37 of the NDPS Act can be relaxed to an extent and the prayer of the accused for grant of bail can be considered despite the fact that she was found in possession of commercial quantity of contraband.

Coming to the present case, the Court noted that in the present case, the petitioner has been in custody since August 29, 2019 and only three out of 32 witnesses were examined so far. 

Therefore, without commenting on the merits of the case, the present petition was allowed and the petitioner was ordered to be released on bail subject to the satisfaction of CJM/Duty Magistrate concerned.