Section 37 of NDPS Act doesn’t suggest that possession of contraband is necessary to attract rigors of that Section:Punjab & Haryana HC

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Read Order: Lovepreet Singh @ Luvi v. State of Punjab

LE Staff

Chandigarh, September 8, 2021: While dismissing the petition for pre-arrest bail, filed by the petitioner – Lovepreet Singh @ Luvi, facing charges under the NDPS Act, 1985, the Punjab and Haryana High Court  has observed that in section 37 of the Act, the language does not suggest that the possession of the contraband by a person is necessary to attract rigors of Section 37.

In this case,the police officials, on receiving a secret information, had intercepted a car coming from Ferozepur side which was then searched. The personal search of the driver, Sukhjinder Singh @ Sukha was conducted and he was found to have tied a cloth which had heroin wrapped in a plastic polythene. The quantity of recovered heroin was found to be 800 gms.

The  driver, who was arrested in this case, during the course of interrogation disclosed that the petitioner/accused had handed over the said heroin to him directing him to take the consignment to Moga and then to contact him, however, on the way the driver had been arrested by the police.

After being nominated in this case, apprehending his arrest, the present petitioner had approached the Court of Sessions at Moga seeking grant of pre-arrest bail by filing an application, which was dismissed by the said Court .

The Bench of Justice H.S.Madaan was of the opinion that most of the times, the persons running the drug cartels do not retain possession of the contraband, rather they keep themselves at a safe distance getting the drug peddling done through small time criminals, drug addicts, poor persons etc. In Section 37 of the Act, the language does not suggest that the possession of the contraband by a person is necessary to attract rigors of Section 37 of the Act.

The Court mentioned that that only small time carriers get caught by the police. Several factors are responsible for the flourishing of the drug racket. In some cases political patronage is provided to the drug peddlers, with the result the police turn blind eye to their activities.

On occasions when such peddlers get involved in cases under the Act, they manage to escape arrest and punishment by exercising their influence with the investigation and law enforcement agencies making use of lacunae in enforcement of law. Such type of drug peddlers are careful enough not to carry contraband themselves, rather use poor persons most of them, are drug addicts, for the purpose of transportation of the drugs and delivery to the consumers, added the Bench

It was also stated that it becomes next to impossible to trace the hierarchy in the drug racket and except for small time carriers, the persons actively involved in the drug racket, the suppliers and the controller at the top do not even get identified or detected.

The custodial interrogation is definitely elicitation oriented but with investigating agency getting little opportunity to have custodial interrogation of the supplier and other persons connected with drug trafficking, police cannot reach the big fish running the drug racket, observed the Court.

Considering the grave and serious allegations against the petitioner, he being specifically named in the FIR, the quantity of contraband recovered from his co-accused, the Bench was of the view that the custodial interrogation of the petitioner is necessary for complete and effective investigation.

In case custodial interrogation of the petitioner is denied to the investigating agency that would leave many loose ends and gaps in the investigation affecting the investigation being carried out adversely, which is not called for, since the investigation would be curtailed to a great extent and the investigating agency would not be able to reach the bottom of the things to find out the material facts and then to act against the persons running the drug racket in order to curb the alarming extent of drug abuse and drug addiction amongst the people of the State, added the Bench.

While opining that there was nothing to suggest that the petitioner had been involved in a false case and the petitioner did not deserve concession of pre-arrest bail, the Court also held that in a case like this interrogation of suspected person is of tremendous advantage in getting useful information.

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