Bar of Section 37 is not attracted for offenses alleged U/S 9A/25 A of the NDPS Act: High Court of Delhi

Section 9A which deals with controlled substances is concerned, there is no categorization of small quantity or commercial quantity. Therefore, the concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substances and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act. This was held in NASTOR FARIRAI ZISO  V. NCB [BAIL APPLN. 1960/2020] in the High Court of Delhi by a single bench consisting of JUSTICE RAJNISH BHATNAGAR.

Facts are that on the basis of secret information, the petitioner was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage. The petitioner accused in her statement u/s 67 N.D.P.S. Act admitted the bags concealing the said bags were given by her friend IKE. Petitioner has filed a petition under Section 439 Cr.P.C. for grant of regular bail.

The counsel for the petitioner submitted that the charges have been framed and the long incarceration of the petitioner would not serve any purpose. The alleged recovered substance is a controlled substance and the bar under section 37 of the NDPS Act for granting bail will not be attracted in the present case, the investigation has been completed, and the petitioner is a respectable foreign citizen and there is no possibility of petitioner fleeing from justice as her passport was seized.

The for the respondent submitted that during her voluntary statement under section 67, NDPS Act she had admitted that the said drugs which were recovered from her possession were given to her by IKE, the petitioner is charged of offense for trafficking of Pseudo-Ephedrine which is used in the production of narcotic drugs/ psychotropic substance. Crucial witnesses are yet to be examined under trial and the petitioner is a foreign national and may jump bail and abscond. The respondent (NCB) relied upon Union of India Vs. Prateek Shukla.

The court referred to the order of the Apex Court in the case of “Sartori Livio vs. State”, wherein the following observations were made,  “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community.” It was further held that “deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.”

The court also made reference to the order of the Delhi High Court in the case of “Sartori Livio vs. State”, wherein the following observations were made, “It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights.”

Considering the facts of the case and keeping in mind the provisions of law applicable. The Court held that the bar of section 37 of the NDPS Act was not applicable. Therefore, keeping in view the entire facts and circumstances, the petitioner/accused was admitted to bail on her furnishing personal bond and certain other directions were made by the court, whilst deposing of the petition.

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