Rigours of Sec 37 of NDPS Act would not apply in case of intermediate quantity of contraband: Delhi HC grants conditional bail to man found with 2.3 kg opium
Justice Amit Mahajan [25-04-2024]

Read Order: VINOD YADAV v. THE STATE [DEL HC- BAIL APPLN. 3124/2023]

LE Correspondent

New Delhi, April 30, 2024: In a case of recovery of approximately 2.3 kg of opium, the Delhi High Court has granted bail to the NDPS accused after considering certain facts such as the contraband seized was of intermediate quantity, he is the sole bread earner of the family and that the completion of trial would take time.

The incident is of the year 2022 when the applicant and co-accused Ravinder were intercepted at the Shakur Basti Railway Station on the basis of secret information. It was alleged that on checking, it was found that the towel had two transparent polythene bags and a total of 2.330 kg of Opium was recovered from the same. It was alleged that co-accused Ravinder had a white bag in his hand which also had two transparent polythene bags in it therefrom 3.086 Kg of Opium was recovered.

It was the prosecution’s case that the accused persons stated in their disclosure statements that they used to work as labourers, however, they did not earn enough to fulfill their requirements They stated that they had been tasked to deliver the contraband to a man in Bathinda, Punjab by one person, namely, Vinod Paswan who had given the contraband to the accused persons near a Bus Stand in Jharkhand. Thereafter, the accused persons had travelled to Delhi where they were intercepted by the police officials. The bail application filed by the present applicant before the learned Trial Court was dismissed. Aggrieved thereby, the accused approached the Delhi High Court with a plea seeking regular bail.

At the outset, the Single-Judge Bench of Justice Amit Mahajan said, “ It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc. However, at the same time, period of incarceration is also a relevant factor that is to be considered.”

One of the arguments raised by the applicant was that the bar under Section 37 of the NDPS Act would not be attracted in the present case as only intermediate quantity of the contraband has allegedly been recovered from the applicant. On the other hand, the State Counsel contended that the rigours of Section 37 of the NDPS Act would be attracted as the total amount of the recovered contraband was more than the threshold of commercial quantity since both the accused persons were travelling together.

Noting that the present FIR was registered against the applicant only for the offence under Section 18 of the NDPS Act and no allegation of conspiracy under Section 29 had been levelled against the applicant, the Bench said, “Prima facie, the contraband recovered from the accused persons cannot be clubbed together and treated as commercial quantity.”

“It is not denied that the contraband recovered from the applicant is Opium weighing 2.330 Kg which is an intermediate quantity, and the rigours of Section 37 of the NDPS Act therefore would not apply”, it further added. It was made clear that in such circumstances, the Court has to consider the parameters as enshrined in relation to grant of bail.

Furthermore, the charges had not been framed in the present case till now as the FSL report of the seized samples was still awaited. Noticing that there are 15 witnesses who are to be examined in the present case, the Bench said, “Speedy trial in such circumstances does not seem to be a possibility. The object of jail is to secure the appearance of the accused persons during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment without the guilt being proved. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time.”

The applicant has been in custody since 26.12.2022. The Bench also considered the fact that the applicant has clean antecedents and is the sole bread earner in his family.Thus, the High Court directed the applicant to be released on bail on furnishing a personal bond for a sum of Rs. 25,000 with two sureties of the like amount, subject to the satisfaction of the learned Trial Court/ Duty.