Anil Dutt Joshi And Ors vs N.C.B.

Heard learned counsel for the petitioners through video conferencing as well as Spl. Public Prosecutor along with Intelligence Officer, present in

person, at length.

Learned counsel for the petitioners stated that recovered quantity is 21.8 gram and commercial quantity is 20 gram therefore, recovered quantity is

only 1.8 gram excessive from the commercial quantity. He further stated that contraband was recovered from the possession of two persons. Both

the persons are brothers and partners and running a medical shop having authorized licence to sale and purchase of drugs. There are certain cases in

which this Court has granted benefit of bail wherein quantity of contraband recovered is marginally higher than the commercial quantity. Accused-

petitioners are behind the bar since 20.11.2020 and trial will take time, therefore, benefit of bail may be granted to the accused-petitioners.

Learned Spl. Public Prosecutor, Mr. M.R. Pareek along with Mr. Sunil Kumar, I.O., NCB, Jodhpur, present in person seriously opposed the bail

application and stated that total 400 tablets were recovered from the possession of the accused-petitioners and 200 tablets were taken by Drug

Inspector. After information of Drug Inspector, proceedings were initiated by Narcotic Control Bureau and remaining 200 tablets recovered by

Narcotic Control Bureau. Total weight of 400 tablets is 43.6 gram which is more than just double to the commercial quantity. He further stated that

important investigation is pending and 200 tablets initially recovered by Drug Inspector is also handed over to the Narcotic Control Bureau. In this

regard, a letter dated 18.11.2020 sent to the Zonal Director of Narcotic Control Bureau by Drug Inspector, Jodhpur. He further stated that there is bar

of Section 37 of the NDPS Act in case of commercial quantity, therefore, benefit of bail may not be granted to the accused-petitioners. Learned

counsel for the petitioners has also relied upon the judgment of Supreme Court in case of Hira Singh & Ors. Vs. Union Of India (UOI) & Ors. : : AIR

2020 SC 325 passed in Criminal Appeal No.722/2017 decided on 22.04.2020 had held :-

In view of the above and for the reasons stated above, Reference is answered as under :

(I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance

with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity

or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is

relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral

substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the

small or commercial quantity

of the Narcotic Drugs or Psychotropic Substances; (III). Section 21 of the NDPS Act is not stand-alone provision and must be construed along with

other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O.

1055(E) dated 19.10.2001"" He further stated that regarding sale and purchase of contraband, fake documents were prepared by accused-petitioners

and if benefit of bail is granted to the petitioners at this stage before completion of investigation, they may effect the independent and fair investigation

and make further false and fabricated documents in regard to sale and purchase of the recovered drugs.

Looking to the facts and circumstances of this case, documents and evidence available on the investigation diary and ratio decided in case of Hira

Singh (supra), without expressing any opinion on merit and demerit of this case, I do not find it a fit case to enlarge the petitioners on bail at this stage.

However, accused petitioners are free to file fresh bail application after filing of the charge-sheet.

Accordingly, the application preferred by the petitioners under Section 439 Cr.P.C. is dismissed with the observations foregoing.