Towels, bedsheets do not qualify to be neutral substances and their weight cannot be included for determining quantity of seized contraband, clarifies Delhi HC
Justice Vikas Mahajan [07-02-2024]

Read Order: MOHD NASAR v. NARCOTICS CONTROL BUREAU & ANR

LE Correspondent

New Delhi, February 9, 2024:  The Delhi High Court has allowed the bail petition of an Afghan national accused under the NDPS Acton the condition that he submits Rs 50,000. The High Court noticed that no recovery of contraband had been made either from the person or the alleged premises of the petitioner.

In the present case, co-accused Hikamtuallah Hakimi, was apprehended at IGI Airport and two towels and one bed sheet were recovered from his bag which were having a pungent smell. On inspection of the said articles, it was found that a yellow powdery substance was coming out from them and their weight was also more than usual. On being asked, the said co-accused disclosed that all the three articles were dried from the mixture of heroin. The case of the respondent/NCB was that 3.19 kg of heroin had been recovered. On preliminary enquiry, it was disclosed by the co-accused that the said heroin was to be delivered to another Afghan national, namely, Mohd. Nasar i.e. the present petitioner.

Co-accused Hikamtuallah Hakimi further disclosed that the petitioner had called him near a religious place for taking delivery of the said drugs. Thereafter, the present petitioner came to the spot, talked to the co- accused and after taking the trolley bag from the co-accused started moving with the co-accused, when he was intercepted by the officials of NCB. Upon search of the petitioner’s house, a transparent polythene containing a white milky substance was recovered. The said polythene weighed 90 grams. The petitioner revealed that the said substance was used to increase the weight of heroin. Another packet was also recovered from the premises of the petitioner, which weighed 3 Kgs.

It was the case of the prosecution that the present petitioner revealed that the said heroin and mixing substance was to be delivered to two Afghani Nationals who are partners in illegal business of selling and purchasing narcotic drugs. It was in this backdrop, that the present petitioner was arrested by the respondent and since then he had been incarcerated. The petitioner had approached the Delhi High Court seeking regular bail in connection with this case registered by the Narcotics Control Bureau, Delhi Zonal Unit under Sections 8(c), 21(c), 23(c) and Section 29 of the NDPS Act.

The petitioner’s counsel had argued that as per the prosecution's admitted case, the alleged substance which was recovered from the premises of the petitioner did not test positive for any narcotic drug or psychotropic substance when tested with the field testing kit and the same had been alleged by the prosecution to be some neutral substance used to increase the weight of heroin. It was also contended that there was no material to show that the premises from where the recovery was effected, was the residence of the petitioner.

The Single-Judge Bench of Justice Vikas Mahajantook note of the fact that no recovery of contraband had been made either from the person or the alleged premises of the petitioner. A white milky substance that was recovered from the house of the petitioner, on being tested by the drugs detection kit, was not found to be a contraband and was alleged to be a substance which was mixed with the heroin to increase its quantity.

“Needless to say, that the rigors to section 37 of NDPS Act would become applicable only when the quantity of the recovered contraband is commercial and there is an incriminating material to show that the petitioner was involved in conspiracy with co-accused Hikamtuallah Hakimi, from whom contraband was recovered in commercial quantity”, the Bench said while also adding, “Therefore, it was necessary for the respondent/NCB to determine the quantity of contraband which has been recovered before an obligation is cast upon the petitioner to fulfill the twin conditions under Section 37 of the NDPS Act, viz., (i) to satisfy the court that there are reasonable grounds for believing that he is not guilty of such an offence, and (ii) that he is not likely to commit any such offence while on bail.”

It was also clear that the respondent had included the weight of two towels and one bed-sheet in the weight of the total contraband which was recovered from the co-accused Hikamtuallah Hakimi. The issue before the Bench was whether the weight of the carrier (being the towels and bedsheets) could be included for determining that the quantity of the recovered contraband was “small or commercial quantity”.

The Bench placed reliance upon Hira Singh v Union of India [LQ/SC/2020/427]wherein it has been observed that in case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the narcotic drugs or psychotropic substances.Also, neutral substance in the context of contraband is to be understood as a substance which is mixed with the offending part of the contraband to either increase the weight of the entire contraband, in order to yield higher profits or to increase potency of the contraband or is an integral part of the contraband in order to facilitate the delivery or consumption of contraband.

Therefore, the Bench was of the view that the towels and bed sheet do not qualify to be a neutral substance and their weight cannot be included in the weight of the contraband for determining whether seized contraband is of “small or commercial quantity”. However, it was also highlighted that this aspect would be considered in detail by the Trial Court during the trial uninfluenced by the aforesaid prima facie view. “…but the Court cannot be unmindful of the fact that at this stage of consideration of bail application of the petitioner, there is no material on record to show that the weight of the actual content of contraband excluding the weight of two towels and one bed sheet is of “commercial quantity” so as to attract the rigors of section 37 of the Act”, it added.

It was also considered by the High Court that therewas nothing on record to indicate that the petitioner had any knowledge of the contents of the bag which was handed over to the petitioner by the co-accused. Therefore, lack of material in this regard would also enure to benefit of the petitioner.It was the case of the prosecution that the petitioner had been in constant contact with the co-accused Hikamtuallah Hakimi via WhatsApp and was thus, a part of the criminal conspiracy in the supply of heroin. The WhatsApp chats, in this case, had not been verified, despite the mobile phone of the petitioner having been seized by the respondent/NCB. Further, the Bench noted the observation of the Supreme Court in Bharat Chaudhary v. Union of India where it has been held that the print outs of WhatsApp messages in the absence of scientific reports couldnotbe treated as sufficient material to establish a live link between the co-accused at the stage of considering a bail application.

The Bench also discarded the incriminating material of the disclosure statement of the co-accused Hikamtuallah Hakimi under section 67 of the NDPS Act, who disclosed that the petitioner was to receive the contraband from him. Reliance was placed uponToofan Singh v. State of Tamilnadu [LQ/SC/2020/754]wherein it has been observed that the disclosure statement of the co-accused is not admissible in evidence. Therefore, there was no material to prima facie, indicate that the petitioner had entered into a conspiracy with Hikamtullah Hakimi.

Observing that there were reasonable grounds for believing that the petitioner was not guilty of the offence alleged and the petitioner was not involved earlier also in any offence under the NDPS Act or had any criminal record, the Bench granted him bail.