Section 37 of NDPS Act not a bar to grant bail for “small quantity” of contraband recovered from a person: The High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 28.05.2021 Pronounced on: 03.06.2021 BAIL APPLN. 1177 2021 HARESH RAWAL Through: Mr. Dharmender Rana & ...... Petitioner Ms.Vaishnavi K. Advocates NARCOTICS CONTROL BUREAU ...... Respondent Through: Mr. Subhash Bansal Senior Standing Counsel for NCB with Mr. Shashwat Bansal Advocate HON BLE MR. JUSTICE SURESH KUMAR KAIT The present Petition has been filed seeking bail in the case arising out of C.C. No. VIII 59 DZ 2020 registered at NCB R.K. Puram under Section 8 20(b) 29 of Narcotic Drugs and Psychotropic Substances Act 1985 henceforth referred to as the “NDPS Act”) which is pending trial. Petitioner is aggrieved by orders dated 29.02.2021 and 23.03.2021 passed by the learned trial court vide which his applications seeking bail Bail Appln. 1177 2021 have been dismissed. Vide present petition petitioner is seeking bail in the present case. The brief facts of the present case as noted in the impugned complaint are that on 18.12.2020 a secret information was received that one Nepali National of small built wearing yellow colour clothes will come near Gate No. 1 Metro Station East of Kailash New Delhi between 1800 1900 hours and he might be carrying narcotics drugs for the purpose of delivery of the same to his client. Upon receipt of said information a raiding team was constituted and after collecting seal of Narcotics Control Bureau DZU 3 testing kit IO Kit and other necessary articles used for search and seizure proceedings reached the spot at about 1800 hours. The raiding team tried to join independent witness by contacting two three persons from the public but none agreed by stating their genuine problems. The surveillance mounted near Gate No.l of the metro Station observed that one person wearing yellow colour sweat shirt whose description was matching with the secret information carrying black colour bag on his shoulder came out and met another person wearing black colour jacket. The person who was wearing yellow colour shirt handed over a small packet to the person wearing black colour jacket who in turn gave some amount in cash to him. At this point of Bail Appln. 1177 2021 time both of them were apprehended by the NCB Team and they were apprised about their identity secret information and purpose of visit. During preliminary enquiries the person wearing yellow sweat shirt disclosed his name as Madan Lama r o Nepal and staying at Sant Nagar East of Kailash and second person wearing black colour jacket introduced himself as Haresh Rawal r o Punjabi Bagh New Delhi. Madan Lama accepted that he was carrying charas in his bag which he used to sell to his clients. He opened his bag in which 46 small zip lock polyethene packets and Rs. 12 000 were found. Besides one packet was also found in the possession of Haresh Rawal. Thus total 47 packets were recovered. Haresh Rawalaccepted that he came to the spot to purchase charas from Madan Lama and he had handed over Rs. 9500 to him for the same. small stones. Out of 47 packets recovered 22 packets were containing small disk circular shape substance 09 packets were containing substance in small sticks shape and rest 16 packets were containing substance in the shape of The substance of 22 packets was tested individually and found positive for charas. Since substance of 22 packets was found similar in Bail Appln. 1177 2021 colour texture and shape as well as the fact that same was found positive for charas therefore substance of all 22 packets was collected in a polythene and weighed and it was found to be 215 grams. The said polythene was tied with string and converted in cloth pulanda Mark A. The substance of 9 packets was tested individually and found positive for charas. Since substance of 9 packets was found similar in colour texture and shape as well as the fact that same was found positive for charas therefore substance of all 9 packets was collected in a polythene and found to be 95 grams. The said polythene was tied with string and converted in cloth pulanda Mark B. The substance of 16 packets was tested individually and found positive for charas. Since substance of 16 packets was found similar in colour texture and shape as well as the fact that same was found positive for Charas therefore substance of all 16 packets was collected in a polythene and found to be 165 grams. The said polythene was tied with string and converted in cloth pulanda Mark C. 10. Thereby in total 475 grams charas was recovered from the 47 zip lock polythene packets. Thereafter the black colour bag concealing material the currency notes of Rs.9500 found in the hand of accused Bail Appln. 1177 2021 Madan Lama and Rs. 12 000 found in his bag were all marked sealed and other procedural formalities were completed. 11. During further investigation seizure memos in respect of two mobile phones No. 9871967226 and 9311295909 recovered from accused Madan Lama scooty bearing No. DL6SAP8OS0 and two mobile phones Nos. 8178012030 & 9582741767 recovered from Haresh Rawal were prepared. 12. Thereafter notice under Section 67 of NDPS Act was issued to Madan Lama and Haresh Rawal. During investigation of the case accused Madan Lama tendered his voluntary statement under Section 67 of NDPS Act wherein he admitted his involvement in drug trafficking and sale purchase of the narcotics drugs. He also disclosed that he came to the spot along with recovered contraband and he sold one packet containing charas to the co accused Haresh Rawat for Rs.9500 and they were apprehended by the NCB officers at the spot. During search and seizure proceedings 475 grams charas and Rs. 21 500 were recovered. Besides he also disclosed about other persons namely Kalpna and Saroj Bhujel who were actively involved with him in illegal trafficking of contraband and provided their mobile numbers. Bail Appln. 1177 2021 13. Similarly present petitioner in his voluntary statement under Section 67 of NDPS Act disclosed that he came to spot to purchase contraband from Madan Lama. He had purchased one packet from Madan Lama and given Rs. 9500 to him as the sale consideration of the contraband. He further disclosed that during search and seizure proceedings 475 grams heroin and Rs. 21 500 were recovered. 14. Petitioner was arrested on 19.12.2020 and after 03 days police custody he was sent in judicial custody on 22.12.2020 and since then he is behind bars. 15. Learned counsel for the petitioner submitted that the alleged recovery from the possession of petitioner is one packet containing 10 gm. of contraband and therefore it is covered under ‘small quantity’ of NDPS Act and so there is no embargo under Section 37 of NDPS Act to release petitioner on bail. 16. Further submitted by learned counsel for petitioner that the alleged recovery has been made without informing petitioner of his right to be searched before Gazetted Officer or Magistrate and without serving notice under Section 50 of NDPS Act. Further urged that the disclosure statement of petitioner under Section 67 of NDPS Act was recorded under threat and Bail Appln. 1177 2021 coercion by NCB officials to which he had retracted on the first available opportunity and so it has not sanctity. 17. Learned counsel also submitted that the alleged recovery of 01 packet from petitioner was not separately weighed or sampled and was rather mixed with 46 packets recovered from the bag of co accused prior to drawl of samples for chemical analysis. Therefore it cannot be ascertained that the packet allegedly recovered from the possession of the petitioner contained narcotic substance i.e. charas and further since samples were drawn after more than 50 days of the alleged recovery it is in violation of procedure laid under NCB Standing Order 1 88 and Government of India Ministry of Finance Standing Order 1989 19 and Section 52A of NDPS Act. It was next submitted by learned petitioner’s counsel that there are no public witnesses to corroborate the prosecution story and that the chats produced by the NCB are messages exchanged between friends. There is no conclusive evidence of weight and chemical analysis of the contraband recovered and also that ‘small quantity’ of charas allegedly recovered cannot be meant for further sale. 19. Lastly it was submitted by learned counsel for petitioner that learned trial court in order dated 23.03.2021 while dismissing petitioner’s second Bail Appln. 1177 2021 bail application has observed that transaction was still in process and therefore it cannot be inferred that the case against the petitioner is only for one packet however the said observation cannot sustain in view of the fact that as per story put fourth by NCB the transaction was complete and apart from Rs.9 500 which he had allegedly handed over to the co accused Rs.910 were also recovered in his personal search. Thus this petition deserves to be allowed and petitioner be released on bail. 20. On the other hand learned Standing Counsel for NCB opposed the present petition and submitted that petitioner along with co accused Madan Lama was involved in the sale purchase of contraband and he was apprehended at the spot while exchanging charas for money and in total 475 gm. of charas was recovered from accused persons. The petitioner in his statement recorded under Section 67 of NDPS Act on 19.12.2020 revealed his intention to purchase 07 packets from co accused and had paid Rs.9 500 to him for the same. 21. Learned Standing Counsel next submitted that the public persons present at the spot gave genuine reasons not to become witness to the proceedings. Moreover the mobile data of chats recovered from petitioner reveals that he has been involved in the illegal trafficking of contraband for Bail Appln. 1177 2021 money for the last few years. 22. Learned Standing Counsel also submitted that the trial court has rightly dismissed petitioner’s bail application twice and since petitioner has admittedly committed grave offence he has no case on merits and this petition deserves to be dismissed. 23. The contentions raised by both the sides were heard at length and the material placed on record has been carefully perused. In the present case 46 small zip lock polythene packets containing contraband were recovered from the bag of co accused Madan Lama and 01 packet was recovered in possession of present petitioner. In total 475 gm. contraband heroin was recovered in this case. 25. Petitioner has claimed that prior to search and seizure proceedings he was not served with Notice under Section 50 of the NDPS Act. On the other hand stand of NCB is that personal search of accused was not carried out as 01 packet containing contraband recovered from petitioner was in his hands while exchanging it for money and the remaining 46 packets were recovered from the bag of co accused and therefore notice under Section 50 of the Act was not required to be given. This has so been observed by the court below while dismissing petitioner’s bail application. Further the evidentiary value Bail Appln. 1177 2021 of petitioner’s statement recorded under Section 67 of the Act cannot be pre judged at this stage. Moreover question regarding call detail and chats will be also tested during trial. 26. Consequently without going into the meris of the prosecution case at this stage what is required to be seen is whether on the face of material placed on record a case for grant or refusal of bail is made out. In the present case it is not disputed that one packet recovered in the hands of petitioner contained 10 gm. of contraband which falls within the category of ‘small quantity’. Thus the prima facie role attributed to the petitioner in the present case appears to be that he had purchased one packet containing 10 gm. charas which essentially is ‘small quantity’. 28. A Division Bench of this Court in Minni Khadim Ali Khun Vs. State NCT of Delhi 2012 SCC OnLine Del 2657 has dealt with the aspect of grant of bail in case of recovery of ‘small quantity’ of contraband and held that where the recovered contraband is ‘small quantity’ the offence is bailable. 29. The substance recovered in this case is not of commercial quantity. Thus the bar of Section 37 of NDPS Act is not applicable. Moreover petitioner is in judicial custody since 19.12.2020. Charge sheet in this case Bail Appln. 1177 2021 has been filed but Charge is yet to be framed and trial will take substantial time. Accordingly this Court is of the considered opinion that petitioner deserves to be released on bail. 30. Consequently without commenting on the merits of the case the petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.25 000 with one surety in the like amount to the satisfaction of the Trial Court Duty Magistrate while making it clear that any observation made herein shall not influence the prosecution case during trial. 31. The petitioner shall not directly or indirectly influence any witness and shall appear before the trial court as and when directed. 32. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance. JUDGE JUNE 03 2021 Bail Appln. 1177 2021 

Summary: The bar of Section 37 of NDPS Act is not applicable in cases where the quantity of contraband recovered from a person falls under the category of “small quantity” and such an offense is henceforth bailable but should not influence the prosecution case during the trial. A single judge bench of the Delhi High Court comprising Justice Suresh Kumar Kait in the case of Haresh Rawal v. Narcotics Control Bureau [BAIL APPLN. 1177/2021] on 3rd June 2021 adjudged this matter. Petitioner was aggrieved by orders dated 29.02.2021 and 23.03.2021 passed by the learned trial court, vide which his applications seeking bail had been dismissed. Vide present petition, petitioner sought bail in the present case. The facts of the cases stated that a secret information was received by the NCB regarding a person of a certain description who might be carrying narcotics drugs for the purpose of delivery to a client. A raiding team was sent to the spot who tried to collect independent witness by contacting two/three persons from the public but none agreed by stating their genuine problems. It was observed by the raiding team that a person of similar description as notified in the secret information, wearing yellow sweat shirt was seen handing over a small packet to his client wearing black jacket. At this point of time both of them were apprehended by the NCB Team and they were apprised about their identity, secret information and purpose of visit. During prelimnary enquiries both the accused disclosed their identities. The person wearing yellow sweat shirt accepted that he was carrying charas in his bag which he sold to his clients and that he carried total 47 packets and Rs. 12000/- in his bag which was also investigated by the NCB. Similarly, the petitioner (wearing black jacket) also voluntary disclosed that he came to the spot to purchase charas and he had handed over Rs. 9500/- to the co-accused for one packet of the same. Petitioner was arrested on 19.12.2020 and after 03 days police custody, he was sent in judicial custody on 22.12.2020 and since then he is behind bars. The arguments submitted by the counsel on behalf of the petitioner were that since the alleged recovery was of just one packet containing 10 gm. and hence is covered under “small quantity” and is therefore bailable. He further contended that neither was the petitioner informed of his right to be searched before a gazetted officer or magistrate without serving notice under Section 50 of NDPS Act before the recovery nor is the disclosure statement of petitioner under Section 67 reliable as it was recoded under threat and coercion by NCB officers. Lastly, he established the fact that the packet which the petitioner possessed was not individually checked for being charas and furthermore, the absence of any witness to corroborate the prosecution story stands in favour of the petitioner. On the other hand, it was submitted by the respondent’s counsel that petitioner along with the co accused was involved in sale-purchase of contraband and was apprehended at the spot during the exchange. He also contended that the public persons present at the spot gave genuine reasons not to become witness to the proceedings. Moreover, the mobile data of chats recovered from petitioner reveals that he has been involved in the illegal trafficking of contraband for money for the last few years.