The High Court of Shimla recently comprising of a bench of Justice Chander Bhusan Barowalia held that Commercial quantity in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified in the official gazette and the offences under commercial quantities are non-bailable U/S 37 NDPS Act 1985. (Sharif Khan Versus Narcotics Control Bureau)
Facts of the Case
The petition was filled by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in Crime No. 15 of 2016, under Sections 8, 18, 29 and 60 of the ND&PS Act, registered by Narcotic Control Bureau, Chandigarh. As per the averments made in the petition, the petitioner was innocent and had been falsely implicated in the present case.
The facts of the case are that NCB, Chandigarh, got a secret tip-off that one Sanjay Patidar is coming to Mandi from Madhya Pradesh in new Force Traveler bus for delivering a consignment of opium. The said team along with two independent witnesses reached, where the said Traveler bus, was parked. The door of the vehicle was locked from inside and a person was sleeping inside. On being knocked, the said person opened the door and divulged his name as Sanjay Patidar, resident of Madhya Pradesh. He further divulged that he is driver and taken the vehicle from Force India Ltd. Patampur, District Dhar, MP for delivering it to Force Motor Ltd. Depot, Tehsil Sadar, District Mandi. Thereafter, personal search of Sanjay Patidar was conducted, but nothing incriminating was found. Said Sanjay Patidar himself handed over a polythene packed, which was kept under the last seat of the bus, which contained some sticky substance and it was opium.
On weighment, the contraband was found to be 3 (three) Kgs. During the course of investigation, it was unearthed that the petitioner has already been arrested by NCB Chandigarh in connection with seizure of 2.800 kgs of opium and the petitioner in his statement under Section 67 of the ND&PS Act.
Contention of The Parties
- Learned Counsel for the petitioner, has argued that the petitioner is innocent and has been falsely implicated in the instant case. He has further argued that the petitioner was not at all involved in the case. The petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when investigation is complete. He has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when investigation is complete, his custody is not at all required, so the bail application may be allowed and the petitioner be enlarged on bail.
- Conversely, the learned Senior Counsel for the NCB has argued that the petitioner was the main kingpin and he, in fact, was the owner of 3 (three) kgs of opium, which is a commercial quantity, and was allegedly recovered by the NCB team from co-accused Sanjay Patidar. He has further argued that the petitioner is resident of Madhya Pradesh and in case at this stage, if he is enlarged on bail, he may flee from justice or tamper with the prosecution evidence. He has argued that the petitioner is the main supplier of the narcotics and in case he is enlarged on bail, he may again indulge in such activities. He has prayed that considering the quantity of the recovered contraband and also the fact that the petitioner is resident of Madhya Pradesh, the instant bail petition be dismissed.
- In rebuttal the learned Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than four years and he cannot be kept behind the bars for an unlimited period, especially when investigation is complete and now nothing remains to be recovered at his instance. He has argued that considering the overall facts and circumstances of the case, the bail petition may be allowed and the petitioner be enlarged on bail.
- In order to support his arguments, the learned counsel for the petitioner has drawn attention of this Court to the following judicial pronouncements:
1. Chitta Biswas Alias Subhas vs. The State of West Bengal, Criminal Appeal No (s) 245/2020 (SLP(Crl.) No. 8823/2019), decided by Hon’ble Supreme Court &
2. Amit Singh Moni vs. State of Himachal Pradesh, Criminal Appeal No. 668 of 2020 (Arising Out of SLP (Criminal) No. 3813 of 2020), decided by Hon’ble Supreme Court.
Courts Observation & Judgment
The Bench rejecting the cases relied on by the Petitioner in support of his arguments. The Court remarked, “Now, after incisively perusing the above cited judgments, this Court finds that the above judgments are of no help to the petitioner, as in the instant case the petitioner is resident of Madhya Pradesh and there is possibility that in case bail is granted he may flee from justice or tamper with the prosecution evidence. Moreover, huge quantity, i.e. 3 (three) kgs of opium was recovered, which was allegedly owned by the petitioner. It has come in the investigation that the petitioner is main supplier of the contraband and he was actively involved in selling contraband, thus the present case does not fall within the category of cases as held in the judgments above. The ratio of the above judgments is not applicable to the present case. Even otherwise, there can never be a straight-jacketed formula or fixed pre-drawn line of law for granting or refusing bail. Each and every petition, seeking bail, has to be seen with the magnifying lenses of facts and circumstances of that particular Case”
The court dismissing the plea stated that, “considering the quantity, which is commercial quantity, and in case at this enlarged on bail, there is possibility that he may flee from justice or tamper with the prosecution evidence, considering the role of the petitioner in the alleged offence, as it has come on record that the petitioner was the main supplier of the contraband and also considering all other vital aspects, which emerge.”
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