Bombay High Court Grants Bail In NDPS Case After Seized Charas Found 10 Grams Lighter At The Time Of Inventory

The Bombay High Court recently granted bail to a man accused of possession of commercial quantity of ‘Charas’ under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) after the weight of Charas seized from him supposedly reduced in police custody.

The prosecution claimed that the weight of Charas at the time of seizure was 1 kg and 10 grams. However, when presented before the magistrate for inventory, it weighed 1 kg only.

Justice MS Karnik noted the explanation given by the prosecution that the seized substance dried up over time –

“though the ‘Charas’ at the time of seizure weighed 1 kg and 10 grams which is a commercial quantity, in the inventory panchanama while drawing samples, the weight of the contraband changed. The reason according to the respondent (prosecution) is that ‘Charas’ was moist at the time of seizure but after 59 days it got dried. It is therefore that the weight at the time of inventory changed than what the actual weight was at the time of seizure.”

The court held that since the contraband seized from Nayak weighed 1 kg at the time of inventory before the Magistrate, qualifying as an intermediate quantity, the strict conditions for bail under section 37 of the NDPS Act would not apply.

The accused Sunil Shishupal Nayak is booked for offences under sections 8(c), 20(c), and 29 of the NDPS Act.

The prosecution alleged that Nayak and another individual were found in possession of Charas during a patrolling duty by the Anti Narcotic Cell. The second accused was found in possession of 1 kg and 15 grams of Charas. The prosecution argued that both individuals were found independently and jointly in possession of 2 kg and 25 grams of Charas in total, which is a commercial quantity.

The contraband seized from Nayak weighed 1 kg and 10 grams at the time of the arrest, which reduced to 1 kg when samples were drawn before the Magistrate 59 days later under section 52A of the NDPS Act. The prosecution stressed that the weight at the time of seizure should be considered rather than the weight recorded before the Magistrate.

APP PH Gaikwad for the State submitted that the delay of 59 days in complying with section 52A was because of circumstances beyond the control of police, due to large number of seizures, and should not act to the prejudice of the prosecution.

The court said that prima facie, apart from the fact that the two accused were found together, there is nothing to indicate that they were in connivance with each other. Considering the question of personal liberty of the accused, the court decided to consider the weight recorded at the time of inventory before the Magistrate in compliance with section 52A.

The court clarified that whether the weight at the time of seizure or the weight before the Magistrate during inventory has to be considered for determining guilt of the accused will be decided at the time of trial.

“I have not expressed any opinion as to whether the weight of the contraband seized at the time of seizure or the one before the learned Magistrate in compliance of section 52A has to be considered in the facts and circumstances of the present case, having regard to the submission of learned APP that delay in compliance of section 52A caused prejudice to the prosecution as at the time of seizure, the ‘Charas’ was found to be moist which underwent a change at the time of sampling when the contraband by then had dried”, the court stated.

The court observed that Nayak had been in custody for more than 1 year and 6 months, with the likelihood of the trial commencing and concluding remote. The court further noted that Nayak had no criminal antecedents reported against him, the investigation was complete, and the charge-sheet had been filed.

Thus, the court granted Nayak bail on an PR Bond of Rs. 1,00,000/- with one or more sureties in the like amount.

Case no. – Bail Application No. 1450 of 2023

Case Title – Sunil Shishupal Nayak v. State of Maharashtra