Criminal Procedure Code, 1973
Section 439—Bail—Case registered under Sections 8(c), 21(c), 23(c) and 29 of NDPS Act—Question as to whether the rigors of Section 37 of the NDPS Act will apply to the petitioner for the recovery of contraband made from the co-accused—No material on record to show that weight of actual content of contraband excluding the weight of two towels and one bed sheet is of “commercial quantity” so as to attract rigors of Section 37 of the Act—Nothing on record to indicate that petitioner had any knowledge of the contents of the bag which was handed over to the petitioner by the co-accused—Case of prosecution that petitioner has been in constant contact with co-accused via WhatsApp—WhatsApp chats have not been verified, despite the mobile phone of petitioner having been seized by the respondent/NCB—Only incriminating material is the disclosure statement of co-accused under Section 67 of the NDPS Act—Disclosure statement of co-accused is not admissible as has been held by the Apex Court in 2021 (4) SCC 1—No material to prima facie indicate that petitioner had entered into a conspiracy with co-accused—Though the rigors of Section 37 of the NDPS Act may not be applicable to the petitioner, but there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged—Petitioner held entitled to grant of regular bail—Application allowed.
[Paras 28 to 33]
Narcotic Drugs
Quantity—Determination—Towels and bed sheet do not qualify to be a neutral substance and their weight cannot be included in the weight of the contraband for determining whether seized contraband is of “small or commercial quantity”.
[Para 29]