Contraband Of Just Above Intermediate Quantity But Not Sizable Is An Additional Factor For Diluting Rigour Of Section 37 NDPS Act: Kerala High Court

The Kerala High Court recently said that the quantity of the contraband seized being just above the intermediary quantity can be one of the grounds to dilute the rigour of Section 37 while granting bail in a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

The court held that apart from the parameters already laid down by the Apex Court including lack of criminal antecedents, time already spent in custody and the time left for commencement of trial, an additional factor to be considered would be the quantity of contraband seized.

A single bench of Justice A. Badharudeen observed that

“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 just 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 court was considering the bail applications filed by two persons from whose vehicle 22.125 kg. of ganja was seized. They were booked for offences punishable under Section 20(b)(ii)C and Section 29 of the NDPS Act.

Adv P.K.Anil and Adv Sojan Micheal Micheal appearing for the petitioners argued that the petitioners had no criminal antecedents, and even though the investigation was complete, the trial had not begun and it was not likely to begin soon. The counsel for the petitioner also contended that the accused was only carrying just above the intermediate quantity and that rigour of Section 37 of the NDPS Act ought to be diluted.

Public Prosecutor Adv. S.Sangeeth Raj argued that since commercial quantity was seized from the petitioners, they must not be granted bail without satisfying the twin conditions provided under Section 37 of the NDPS Act.

The court referred to a catena of judgements of the Apex Court and mentioned the parameters to be considered to dilute the rigour of Section 37 of the NDPS Act:

(1) the accused should not have any criminal antecedents.

(2) the accused has been in custody for a long time, at least a period more than one year (say for eg. about fourteen months in the instant case).

(3) the impossibility of trial within a reasonable time (for this purpose, the Court granting bail should ensure that trial could not be completed at least within a period of six months).

The court observed that the petitioners have been in custody for more than a year, and they do not have any criminal antecedents. The court also observed that trial was unlikely to begin within a reasonable time. While granting bail to the accused persons, the court observed:

“In addition to that, the quantity of the contraband they possessed is only 22.125 kg. which is just above the intermediate quantity.”

Case Title: Fasil V State of Kerala

Citation: 2023 LiveLaw (Ker) 208

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