No bail in drugs case even if quantity little above 'commercial': Punjab and Haryana High Court

Tribune News Service

Saurabh Malik
Chandigarh, April 21

In a significant judgment, the Punjab and Haryana High Court has made it clear that an accused in a drugs case cannot seek the concession of bail on the grounds that the quantity was marginally above “commercial”. Justice Anoop Chitkara of the High Court ruled that the submission was more compassionate than legal.

Drugs case: Judges have no latitude

Once the quantity is greater than commercial, it is immaterial for the purpose of bail. Once it is in statute, judges have no latitude. Given the legislative mandate under Section 37 of the NDPS Act, an accused is not entitled to bail if the quantity is marginally above the commercial quantity. Justice Anoop Chitkara, Punjab and Haryana High Court

“Once the quantity is greater than commercial, it is immaterial for the purpose of bail. Once it is in statute, judges have no latitude. Given the legislative mandate under Section 37 of the Narcotics Drugs and Psychotropic Substances Act (NDPS Act), an accused is not entitled to bail if the quantity is marginally above the commercial quantity,” Justice Chitkara asserted.

The matter was brought to Justice Chitkara’s notice after an accused filed a plea seeking bail in a case registered under the provisions of the NDPS Act in December last year at the Ellenabad police station in Sirsa district.

The Bench, during the course of the hearing, observed that the petitioner was behind bars upon his arrest for allegedly possessing 405 gm of diacetyl morphine or heroin, which fell in the category of commercial quantity.

Justice Chitkara observed that the accused claimed the absence of criminal antecedents. But the State’s report said the petitioner was involved in two other criminal cases. Referring to the petitioner’s argument that the investigator violated the provisions of the NDPS Act while conducting search and seizure, the Bench added that it was a question of fact to be adjudicated in the trial.

Elaborating, Justice Chitkara added that the prosecution required an opportunity to prove that they had complied with the mandatory provisions as per law before the court treated the compliances as illegal. Such a stage would come only during the trial and certainly not during the bail plea hearing, where it would be hit by the maxim “Audi Alteram Partem”. The maxim, meaning “let the other side be heard as well’, is a principle of natural justice where every person gets a chance of being heard.

Justice Chitkara added the stand that the accused was in custody for a sufficient time, too, was not a legal ground to overcome the rigours of Section 37 at the current stage. Dismissing the plea, the Bench added that the petitioner had failed to make a case for bail at this stage in the facts and circumstances peculiar to the case and for the reasons mentioned, but it would be open for the petitioner to file a new bail application in the changed circumstances or after recording the statements of the witnesses other than formal, whichever was earlier.

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