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Bail u/s 37 of the NDPS Act can be granted only if there’s reasonable ground to believe that accused did not commit the offence: High Court of Delhi

The limitations on granting of bail specified in clause (b) of sub-section (1) u/s 37 of NDPS Act are in addition to the limitations under the Code of Criminal Procedure, 1973. The expression used in Section 37(1)(b)(ii) is reasonable grounds which means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence. According to Section 37 of the NDPS Act, the test required while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. These were stated by High Court of Delhi consisting, Justice Chandra Dhari Singh in the case of Muhsin Ali vs. Narcotics Control Bureau [BAIL APPLN. 3861/2021] on 25.01.2022.

The facts of the case are that on 27th August 2020, the Narcotics Control Bureau (NCB) directed Investigating Officer to carry out controlled delivery operation of parcels lying at the Cargo Terminal, IGI Airport, New Delhi. Accordingly, on 1st September 2020, search operation was conducted, and the investigating team seized 970 grams of heroin and collected samples of substance found in impugned parcel. On 2nd September 2020, Wahid Ali was arrested and his statement under Section 67 of the NDPS Act was recorded. During inquiry, various incriminating documents were found in his phone including images of invoice pertaining to parcel containing drugs (second parcel), which he disclosed was due to arrive on 4th September 2020. On 4th September 2020, another search was conducted by the NCB team at Hotel Shalimar near IGI Airport where petitioner was staying along with three other persons namely Muhammed Haneef T, Muhammed Shajahan PP, and Munasir Ek. All the three co-accused were arrested on the recovery of five grams of Heroin from a bag in the room. On 5th September 2020, Bethlehem & Emmanual were both arrested who were supposed to receive the parcel. Subsequently on 15th September 2020, Peter was arrested at the instance of Bethlehem. Subsequently, on 1st July 2021, the petitioner filed First Bail Application which was rejected by the court.

The learned Counsel for the Petitioner submitted that the bail should be granted on the ground of parity in terms of other co-accused since the Trial Court granted a bail to three other accused namely Mohd. Hanif, Munaser E.K. and Shahjahan. He argued that the statement of other co-accused and the accused recorded under Section 67 of the NDPS Act is inadmissible and cannot be relied upon to implicate the Petitioner. It was argued that the contraband of five grams was not in the “conscious possession” or “constructive possession” of the petitioner but was recovered from a bag inside a hotel room where the petitioner was residing along with the three other accused and even if the recovery of five grams is taken into account, it would tantamount to small quantity and not commercial quantity for which the Petitioner can be sentenced for a maximum period of one year, out of which he has already undergone for a period of more than 12 months in custody. The Counsel further submitted that the petitioner should be granted bail as he has never avoided any investigation or court order.

The learned Counsel for the respondent submitted the petitioner’s statement was not statement simpliciter but led to the discovery of the impugned parcel, thus is admissible. On the ground of parity, he argued that the other co-accused who were released on bail were not implicated in other recoveries. On the other hand, the role of the Petitioner is ascribed in other recoveries. He further contended that the sequence of events prima facie establishes conspiracy on the part of petitioner. It was also submitted that the petitioner was part of a drugsyndicate indulging in illegal business of drug-trafficking and thus is not entitled to bail on the contours of Section 37 of the NDPS Act.

The High Court of Delhi held that the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable. The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity. The expression used in Section 37(1)(b)(ii) is reasonable grounds which means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence. According to Section 37 of the NDPS Act, the test which Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. In the present case, the Petitioner is charged for commercial quantity and his bail application needs to be decided as per Section 37 of the Act. Thus, the ground of parity for seeking bail is erroneous and is rejected at the very outset. Accordingly, the instant Bail Application stood dismissed.

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Judgment reviewed by Shristi Suman.

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