Quantity Of Contraband Can Be Considered For Dilution Of Rigour Of S.37 NDPS Act After Satisfying Other Parameters For Bail: Kerala High Court

As per Section 37 of the NDPS Act, the Court can grant bail to the accused only if it 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

Justice A. Badharudeen noted that the other parameters that ought to be satisfied in this regard included firstly, accused not having any criminal antecedents; secondly, the accused being in custody for a long time, at least more than a year; and lastly, the impossibility of trial within a reasonable time, i.e. at least within a period of six months, after completion of his custody for a period of more than one year, as had been laid down by several Apex Court decisions.

The Court thus went on to observe:

“Yet another aspect to be added in the list, in my view, is the quantity of the contraband. That is to say, when the quantity of contraband is something above the intermediate quantity and the same is not a huge or sizable quantity, the same also can be considered after satisfying the above 3 parameters stated herein above, for diluting the rigour under Section 37 of the NDPS Act”.

The prosecution case against the accused petitioner was that 39.845 kilogram of ganja in 17 packets were allegedly seized from him and other accused persons from a building, pursuant to which offences punishable under Sections 8(C), 20(b)(ii)(C), 27(A), 29, and 31(1) of the NDPS Act was registered against him. Following the arrest of the petitioner on March 28, 2021, he had been in judicial custody since.

It was argued by Advocates S. Jiji and M.M. Baby that the petitioner, who is the 5th accused in the crime, was innocent and had been in custody for more than two years. It was also averred that the petitioner had no criminal antecedents and that all the other accused persons in the crime had been released on bail. It was further submitted that the trial could not be materialized within a reasonable time in the matter.

Senior Public Prosecutor P.G. Manu on the other hand, opposed the grant of bail on the ground that as commercial quantity of contraband had been seized from the petitioner, the Court could not grant him bail without satisfying the twin conditions provided under Section 37 of the NDPS Act.

The Court in this light went on to peruse a plethora of Apex Court decisions such as Dheeraj Kumar Shukla v. State of UP (2022), Rajuram v. State of Bihar (2023), and Mohd Muslim @ Hussain v. State (NCT of Delhi) [2023LiveLaw (SC) 260] where the rigours of Section 37 had been diluted in cases involving commercial quantity of narcotic substance on the grounds of the accused having no criminal antecedents, the period of his custody, and the trial not materializing within a reasonable time.

It is on this basis that the Court adopted the view that the quantity of the contraband could also be considered for dilution of the rigour under Section 37 of the NDPS Act, after satisfaction of the other parameters.

“In this matter, the petitioner has been in custody from 28.03.2021 and now more than two years have been elapsed and trial has not yet started. The petitioner has no criminal antecedents. Further, there is no possibility to complete the trial within a reasonable time, at least within a period of six months. Thus, the three parameters can be found in favour of the petitioner,” the Court observed while allowing the bail application and holding that the petitioner could be enlarged on bail subject to the conditions stipulated by it.

Case Title: Jijendran C.M. v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 206

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