P&H HC grants bail to NDPS accused considering that quantity of contraband carried by all accused could not be added to bring it within commercial quantity

Read Order: Nirmala v. State Of Punjab

Monika Rahar

Chandigarh, March 29, 2022: Applying the ratio of the Supreme Court in Amarsing Ramjibhai Barot Vs. State of Gujarat‘ 2005(3) Apex Criminal 326, the Punjab and Haryana High Court has granted bail to the petitioner (one of the three accused) on the ground that the quantity of the contraband recovered from the three accused, when taken individually, would make the petitioner’s case fall under the category of non-commercial quantity. 

The bench of Justice Sant Parkash held, “In the present case, the recovery effected from all the three accused if taken/carried out individually then the recovery can be concluded to be non-commercial.”

In Amarsingh Ramjibhai Barot (Supra), the Apex Court held that the quantity of contraband carried by both the accused could not be added to bring it within the meaning of commercial quantity and Section 29 will not be attracted.

The Court was approached with a petition under Section 439 of Cr.P.C. for the grant of regular bail to the petitioner, in an FIR registered against him under Sections 22(b), 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 

On July 31, 2021, the petitioner and his co-accused were apprehended by a Police party patrolling the area. On their search, recovery of commercial quantities of contraband [12 vials of Omerex, 400 tablets of Tramadol and 150 tablets of Carisoprodol] was made from all the three accused persons. Drug money in the amount of Rs. 1,26,000/- was also recovered from the present petitioner. 

The petitioner’s counsel argued that nothing else apart from 2 bottles of Omerex and 50 tablets of Carisoma and Rs. 1,26,000/- were allegedly recovered from the petitioner. The counsel further argued that no independent witness was joined by the police party during the alleged recovery and that the mandatory provisions of the NDPS Act were not complied with. Also, the counsel submitted that the Challan in the present case was already filed and the petitioner was in custody since July of 2021. Therefore, the counsel sought the release of the petitioner on regular bail. 

Importantly, the petitioner’s counsel argued that the alleged recovery of contraband is to be taken individually and not jointly and, in the present case, when the contraband is taken individually, the case would fall under non-commercial quantity. In support of his arguments, the Counsel relied upon the Supreme Court in Amarsingh Ramjibhai Barot (Supra). On the other hand, the State Counsel submitted that the petitioner was accused of having committed serious offences, thus, in view of the nature of the accusation and gravity of the offences, the Counsel advanced a case against the grant of regular bail to the petitioner. 

The Court at the outset had a detailed look at the contraband recovered from the three accused persons individually, to expound that in the present case, the recovery effected from all the three accused, if taken/carried out individually, would be non-commercial.  

The Court allowed the petition keeping in consideration the ratio of the Top Court in Amarsingh Ramjibhai Barot (Supra), various factors such as as the recovery of the contraband from all the three accused taken individually was non-commercial, the charge sheet was already presented, custodial interrogation of the petitioner was not required for effecting any recovery and the trial was going to take a long time. 

Thus, the petitioner was ordered to be released on regular bail on furnishing of personal and surety bonds to the satisfaction of the Trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.