InBail Appln. 1309/2023 -DEL HC- ‘Accused were acting collectively & were in conscious possession of the entire quantity of contraband’: Delhi High Court rejects bail pleas in NDPS Case
Justice Amit Bansal [11-10-2023]

Read Order:Sheela and Ors V. State Govt. of NCT of Delhi

Chahat Varma

New Delhi, October 11, 2023: The Delhi High Court has dismissed the bail pleas of two accused persons, arrested in a case involving the possession of commercial quantities of ganja.

In that matter at hand, the applicants had sought regular bail in a case registered under Sections 20/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The case as set up by the prosecution was that they had received secret information at Police Station Sarita Vihar about an illegal supply of Ganja. In response, a raiding party was constituted, and a raid was conducted. During the raid, three individuals - Vinod, Iqbal, and Sheela - were apprehended while traveling in a three-wheeler. Vinod and Sheela were seated in the back seat, each with a bag between their legs. Both bags were seized, sealed, and taken into possession, and all the accused individuals were subsequently arrested. Samples from the bags were drawn and sent for testing, which confirmed the presence of Ganja. After the investigation was completed, a chargesheet was filed, and the FSL report was submitted through a supplementary chargesheet. On August 29, 2023, charges were framed against all three accused persons under Section 20(C) read with Section 29 of the NDPS Act, which pertains to commercial quantity.

On behalf of Sheela, the argument was presented that she was apprehended with a bag containing 14.13 kg of Ganja, which falls into the category of an intermediate quantity. In contrast, her co-accused, Vinod, had a handbag containing 24.20 kg of Ganja, which qualifies as a commercial quantity. The defence contended that the quantity recovered from Vinod should not be aggregated with the quantity recovered from Sheela.

Additionally, the other applicant, Iqbal, sought bail on the grounds that no contraband was recovered from him, and he was simply the driver of the auto. It was emphasized that a search in accordance with Section 50 of the NDPS Act had not been conducted on him, and for that reason, he sought bail.

The single-judge bench of Justice Amit Bansal reviewed the decision rendered in Union of India Through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan [LQ/SC/2021/3058], wherein a car in which the co-accused were traveling was intercepted, and the search of the car revealed two polythene packets hidden within it. The first packet contained 1.740 kg, and the second packet contained 1.750 kg samples. These samples were subsequently sent for testing, and they tested positive for heroin. One of the co-accused sought bail on the grounds that he was merely a companion in the vehicle and was not in conscious possession of the contraband. Furthermore, he argued that the provisions of Section 50 of the NDPS Act were not complied with. However, the Supreme Court rejected the bail application, noting that the accused was not an unknown passenger in the vehicle but was someone in close contact with the other co-accused.

The bench emphasized that in the present case, all the accused persons were traveling together in the same vehicle, and the total quantity of Ganja seized was 14.13 kg and 24.20 kg in two separate bags. It was noted that simply because the bag containing 24.20 kg of Ganja was found between the legs of the co-accused Vinod and the bag containing 14.13 kg of Ganja was located between the legs of Sheela, it could not be asserted that the recovery from Sheela was limited to 14.13 kg.

The bench further took into consideration the information provided in the Status Report submitted by the State. This report indicated that there were 287 phone calls between Sheela and Iqbal, as well as 19 calls between Iqbal and co-accused Vinod. This information suggested that all the accused individuals were acting collectively and were in conscious possession of the entire quantity of 38.33 kg of Ganja.

In response to the submission made on behalf of Iqbal concerning non-compliance with Section 50 of the NDPS Act, the bench ruled that the provisions of Section 50 do not apply in cases where the seizure of contraband has been made from a motor vehicle. In this case, no seizure was made from Iqbal's person, and therefore, Section 50 of the NDPS Act was not applicable.

Thus, taking into account the facts and circumstances, including the fact that the accused persons were traveling together in a vehicle and that large commercial quantities of Ganja were recovered from their possession, the bench concluded that the twin conditions mentioned in Section 37 of the NDPS Act were not satisfied. As a result, bail could not be granted to the applicants at this stage, and their bail applications were dismissed.