HC: After ‘reasonable satisfaction’, accused carrying commercial quantity of contraband can be released
Observing that “court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of the rigours of Section 37 of the NDPS Act”, the Punjab and Haryana High Court has granted bail to a 25-year-old woman arrested in an NDPS case involving commercial quantity of 51 kg and 500 grams of ganja.
As per FIR registered under NDPS Act at Sector 58 police station, Faridabad, on March 15, 2021, the police had received secret information that Innus and Mubin, accompanied by a girl, were transporting ganja in a car, and would be selling it to Fakruddin. The police spotted the vehicle and saw three persons in the car handed over one packet to the person who had come in an MUV. Although the police immediately swung into action, all the three males managed to escape.
However, the police party nabbed one female, Abida, from the car. The police also apprehended the male from MUV, Fakkrudin. The packet recovered from Fakkruddin was searched, and it contained 10 kg and 300 grams of ganja. On search by a gazetted officer and a magistrate, 41 kg 200 grams of ganja was recovered from the boot of the car in which the petitioner was sitting. After the search, the investigator arrested Abida and Fakkrudin. The investigation revealed that Innus, the petitioner’s husband, owned and drove the car, and was one of the three males who managed to run away.
Seeking bail in the matter, Abida through her counsel Lokesh Vohra contended that she had married Innus only two months before her arrest, and she was unaware of her husband’s illegal activities and criminal antecedents. Also, she was unaware of the contents of the brown parcel allegedly handed over to Fakkrudin. It was argued that her presence in her husband’s car does not constitute knowledge and possession of the contraband.
While opposing the plea, the state counsel submitted that the quantity of contraband is commercial and the petitioner has failed to overcome the rigours of Section 37 of the NDPS Act, and also whether the petitioner was in possession of contraband would be a matter of trial on the basis of evidence.
Amicus curiae appointed by the HC, Aashna Gill, submitted before the court that when the substance falls under commercial quantity, the statute mandates a minimum sentence of 10 years of imprisonment and a minimum fine of Rs 1 lakh, and bail is subject to the riders mandated in Section 37 of the NDPS Act. And the rigours of Section 37 of the NDPS Act apply in the present case and burden is on the petitioner to satisfy the twin conditions under Section 37 of the NDPS Act.
Hearing the matter, Bench of Justice Anoop Chitkara observed, “The court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors… both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the public prosecutor, enabling to take a stand on the bail application. The second stipulation is that the court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates… Thus, the grant of bail or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts.”
Noting that “she had married Innus two months before the seizure of the contraband”, the HC said, “The state did not dispute the fact of recent marriage… The investigation does not reveal that Abida had married Innus even after knowing about his involvement in drugs…Two months is too brief a time to establish her knowledge and participation with certainty…”
Remarking that Abida has satisfied the first rigour of Section 37 of the NDPS Act, the HC said to take care of the second rigour, this court will impose stringent conditions to assure that she does not indulge in drug trade while on bail, and granted her bail with conditions.