Bar on bail valid if drugs seized above specified quantity: Punjab and Haryana High Court

Saurabh Malik

Chandigarh, September 5

A legal debate has cropped up in a case where four accused in two pairs were jointly holding plastic bags allegedly containing contraband. The issue before the Punjab and Haryana High Court was whether the contraband was to be considered jointly as aggregate recovery or separately.

The state counsel’s argument was that four accused were walking together. Two of them were jointly holding one bag. The other two were holding another bag. The seizure of 10-kg ganja from each bag was required to be considered as a “joint recovery”.

The issue assumes significance as recovery of more than 20-kg ganja would attract bar on bail in accordance with Section 37 of the Narcotic Drugs and Psychotropic Substance (NDPS) Act.

Taking up the matter, Justice Vikas Bahl asserted: “It will be a matter of debate as to whether the recovery is to be seen jointly and considered on aggregate basis or the recovery is to be seen separately i.e. in pairs.”

The issue, however, was left open with Justice Bahl granting bail to one of the four accused after making it clear that the bar on the same would be applicable only when the recovered contraband was more than the specified quantity and not merely equivalent.

Justice Bahl ruled the entire recovery would, prima facie, not fall within the ambit of commercial quantity, even if taken jointly. “Even in case the entire recovery is to be taken jointly as an aggregate recovery, the said recovery is 20-kg ganja. It will also, prima facie, not fall within the ambit of commercial quantity as it is only in case the quantity is more than what is stipulated i.e. 20 kg that the same will fall within the ambit of commercial quantity.”

Justice Bahl asserted: “Twenty-kg recovery included weight of the bags. As such, the bar under Section 37 of the NDPS Act will not apply. The provision makes it clear that severity or strictness in granting bail was applicable to offences involving commercial quantity. It indicates that no person accused of an offence punishable under this law shall be released on bail or on his own bond unless— the public prosecutor has been given an opportunity to oppose the application for such release and where the public prosecutor opposes the application. The court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

Granting bail, Justice Bahl added the petitioner was in custody since January 1. None of the 11 witnesses had been examined and the trial was likely to take time. He was also not involved in any other case.

Aggregate or separate recovery

• The issue before the Punjab and Haryana High Court was whether the contraband was to be considered jointly as aggregate recovery or separately
• The state counsel’s argument was that of the four accused, two were holding one bag, while another one was held by the other two
• The seizure of 10-kg ganja from each bag was required to be considered as a “joint recovery”