The Rigors Of Section 37 Of The NDPS Act Can Be Relaxed In Cases Involving Commercial Quantity Where There Is A Delay Of Conclusion In Trial

Case Title:
Ghanso @ Kalo Vs State Of Punjab

Date:
31/05/2022

Bench:
Justice Jasjit Singh Bedi

Parties:
Petitioner – Ghanso @ Kalo
Respondent – State of Punjab

Subject

A petition was filed under Section 439 of the CrPC for granting regular bail in FIR No. 84 dated 29/08/2019 under Sections 21 and 29 of the NDPS Act.

Important Provisions

1. Section 439 of CrPC – Special powers of High Court or Court of Session regarding bail.
2. Section 21 of the NDPS Act – Punishment for contravention in relation to manufactured drugs and preparations.
3. Section 29 of the NDPS Act – Punishment for abetment and criminal conspiracy.
4. Section 37 of the NDPS Act – Offences to be cognizable and non-bailable.

Overview

• A secret information was received wherein it was stated that Lakho Rani wife of Late Jagga Singh, Ghanso @ Kalo wife of Late Surinder Singh and Sukhwinder Singh were doing the business of selling Heroin.
• The Heroin was supplied by Jassu daughter of Jaggi Singh.
• The three accused were coming in a car towards Sangrur Basti for supplying Heroin.
• With the said information a naka was laid and the car was stopped.
• The car was owned by Ghanso and was driven by Sukhwinder Singh.
• 500 grams of Heroin was recovered from the car.

Issues raised

1. Whether the rigors of Section 37 of the NDPS Act could be relaxed in cases involving commercial quantity where there is a delay in conclusion of the trial?

Advancements made by the petitioner

• The learned counsel for the petitioner argued that there was a violation of Section 42 of the NDPS Act.
• The petitioner could not be held for conscious possession as the bag was lying near the handbrake of the car.
• The learned counsel further contends that since the petitioner’s husband had expired earlier itself, the petitioner being 37 years old had the burden to take care of her young children.
• The petitioner was in custody since 29/08/2019 and as of now only three witnesses have been examined out of the 32 witnesses.
• Thereby the learned counsel for the petitioner prayed for grant of regular bail citing the above-mentioned reasons.

Advancements made by the Respondent

• The learned counsel for the respondents argued that vehicle belonged to the petitioner thereby since the Heroin was recovered from the said vehicle the matter whether the Heroin was in conscious possession or not was in question.

Judgment Analysis

• The Hon’ble Court relied upon various cases to consider the grant of bail in cases where there was a delay in the conclusion of the trial.
• In the case of Chitta Biswas Vs. The State of Bengal,Crl. Appeal No(s) 245/2020 where a commercial quantity of phensydryl cough syrup was recovered and only 4 out of 10 witnesses were examined. The Court granted bail to the accused after a total custody period of 1 year and 7 months.
• In the case of Amit Singh Moni Vs. State of Himachal Pradesh, Crl. Appeal No. 668 of 2020, 3kg and 285 grams of Charas was recovered. The Court granted bail to the accused after he had gone through a total custody period of 2 years and 7 months.
• In the case of Vipan Sood Vs. State of Punjab and Anr., CRM-M-20177-2020 (O&M), 3.8 kgs of Charas was recovered. The accused was granted bail after he had undergone a total custody period of 1 year and 7 months. The NCB then filed a SLP against this order which was later dismissed by the Hon’ble Supreme Court.
• In the case of Kulwant Singh Vs. State of Punjab, Crl. No.5187/2021, a commercial quantity was recovered and looking at the age of the petitioner the accused was granted bail.
• In the case of Mahmood Kurdeya Vs. Narcotics Control Bureau, Crl. Appeal No. 1570/2021, a huge quantity of contraband was recovered and the accused was granted bail after he had undergone a total custody period of 3 years and 3 months.
• The above judgments show that the Hon’ble Supreme Court had granted bail to the accused where they had undergone a substantial period of custody despite the rigors of Section 37 of the NDPS Act.
• The petitioner in the present case was in custody since 29/08/2019 and only 3 witnesses out of the 32 witnesses have been examined until date.

Conclusion

The Court concluded by allowing the petition. The rigors of Section 37 of the NDPS Act were relaxed and the bail was granted since the accused was in custody since 29/08/2019.

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