In CRM-M-5505-2022- PUNJ HC-Given legislative mandate u/s 37 of NDPS Act, accused is not entitled to bail if quantity is marginally above commercial quantity, rules P&H HC Justice Anoop Chitkara [20-04-2022]

Read Order: Karamjeet Singh v. State of Haryana

Monika Rahar

Chandigarh, April 22, 2022: While dealing with a bail plea in a Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) matter, the Punjab and Haryana High Court has held that bail in such a matter cannot be sought merely on the ground that the quantity of substance allegedly recovered is marginally above the commercial quantity. The Court further held that once the quantity is greater than commercial, it is immaterial for the purpose of bail that the quantity was ‘marginally’ above the mark of commercial quantity. 

The Bench of Justice Anoop Chitkara held, “Once it is in statute, Judges have no latitude. Given the legislative mandate under section 37 of the NDPS Act, an accused is not entitled to bail if the quantity is marginally above the commercial quantity.”

Also, the Court added that at the stage of bail, the question of whether the mandatory provisions of Sections 42 and 50 of the NDPS Act were complied with or not, is to be determined by the trial Court after giving the prosecution an opportunity of being heard. However, in exceptional cases, the Court held that this question can be addressed at the stage of bail provided the non-compliance is apparent on the face of the special report under section 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-rectifiable, after recording a finding that it is an incurable defect, the court might consider granting bail on such violations. 

In this case, the petitioner was arrested in an FIR registered under Section 21 (c) of the NDPS Act for possessing 405 grams of diacetylmorphine (heroin) (chitta), which falls in the category of commercial quantity and he came up before the High Court under Section 439 of Cr. P.C. seeking bail. 

Essentially, based on the prior information about the transportation of ‘chitta’ in a car, the police recovered heroin from the pocket of the shirt worn by the petitioner Karamjeet. 

In his bail application, the accused declared no criminal antecedents, however, it came to the light, from the report of the State that the petitioner was involved in two other criminal cases. 

The Counsel for the petitioner contended that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family and that the quantity of the contraband recovered is marginally above the commercial quantity. It was also contended that the investigator conducted search and seizure violating sections 42 and 50 of the NDPS.

On the other hand, while opposing the bail, the contention on behalf of the State was that the quantity of contraband involved in the case falls in the commercial category. 

The Court at the very outset noted that the substance involved in the present case was Heroin [Diacetyl morphine] and it weighed 405 grams. Further, addressing the plea of the petitioner that the quantity recovered was marginally above the commercial quantity, the Court opined that this submission was more compassionate than legal as once the quantity is greater than commercial, it is immaterial for the purpose of bail. Once it is in statute, Judges have no latitude, added Justice Chitkara. 

Also, it was held that given the legislative mandate under section 37 of the NDPS Act, an accused is not entitled to bail if the quantity is marginally above the commercial quantity.  

Next, addressing the argument on violation of sections 42 and 50 of the NDPS, the Court opined that whether the Investigator complied with the mandatory provisions of sections 42 and 50 of the NDPS Act was a question of fact to be adjudicated in the trial after giving the prosecution an opportunity to prove that they complied with the mandatory provisions per law. 

Such a stage, the Court held, would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. Also, the Court added that there is, however, an exception to this general rule which is applicable only when the non-compliance with the mandatory provisions of sections 42 and 50 of the NDPS Act is apparent on the face of the special report under section 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-rectifiable, after recording a finding that it is an incurable defect, the court might consider granting bail on such violations. 

Further, the Court opined that the stand that the accused is in custody for sufficient time is also not a legal ground to overcome the rigours of S. 37 of the NDPS Act at the bail stage. 

Thus, the Court held, after looking into the circumstances and law, that the grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. 

The petitioner, from whose personal search, the police had recovered a commercial quantity of heroin, has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act, observed the Court while holding that the petitioner failed to make a case for bail at this stage. 

Accordingly, the Court was of the view that the petitioner failed to make a case for bail at this stage.