2025 (7) TMI 1450 - HC - Indian Laws

Bail granted under Section 37(1)(b) NDPS Act for accused in commercial quantity LSD case due to lack of evidence

Saneesh Soman Versus Narcotics Control Bureau

The HC granted bail to the Applicant accused of possessing commercial quantity LSD recovered from a courier parcel. Although the quantity exceeded the ... Seeking grant of bail - recovery of 15 LSD paper blots - offences under Sections 8(c), 20(b), 22(c), 23(c), 27-A & 29 of the NDPS Act - confessional statement of the Petitioner under Section 67 of the NDPS Act - admissible evidence or not - HELD THAT:- The contraband in question, i.e., 100 LSD blots weighing approximately 3.5 grams, was recovered from a courier parcel which the Applicant had come to collect from the DTDC office in Kottayam. Given that the recovered quantity exceeds the prescribed threshold of 0.1 gram for LSD, it qualifies as a commercial quantity under the NDPS Act, thereby invoking the statutory embargo under Section 37 of the Act. Therefore, for the grant of bail, the Applicant must satisfy the twin requirements under Section 37(1)(b) of the Act, i.e., (i) the Court must be satisfied that there are reasonable grounds to believe the accused is not guilty of the alleged offence, and (ii) the accused is not likely to commit any offence while on bail. The Applicant has consistently maintained that he had no knowledge of the contents of the parcel and had collected the same solely at the request of his neighbour, Punan C.M. @Robin, who had provided him the consignment details via WhatsApp. While the true extent of his knowledge and involvement will undoubtedly be subject to evidence at trial, at this stage, the prosecution has not produced any direct or circumstantial material to demonstrate that the Applicant knew or ought to have known about the nature of the contents. Thus, the act of merely receiving a package, absent any material to suggest that the Applicant was aware of its illicit contents, prima facie, cannot by itself satisfy the legal threshold of “possession” under the NDPS Act. Taking a holistic view of the material presently available, the role ascribed to the Applicant appears confined to the act of collecting the parcel, with the prosecution primarily relying upon his alleged confessional statement under Section 67. There are no incriminating call records, financial transactions, or digital communications linking him to the co-accused or trafficking network. In the absence of such corroboration, and given the settled position that confessions under Section 67 are insufficient without supporting evidence, this Court is of the view that the benefit of doubt ought to enure to the Applicant at this stage. Accordingly, for the limited purpose of bail, there are reasonable grounds to believe that the Applicant is not guilty of the offence alleged. The first limb of Section 37(1)(b) of the NDPS Act is therefore satisfied. As regards the second requirement under Section 37(1)(b) of the NDPS Act, it is pertinent to note that the Applicant does not have any prior criminal antecedents. There is nothing on record to suggest that he poses a flight risk or that he is likely to commit any offence while on bai - this Court finds no material to conclude that the Applicant would misuse the liberty of bail, if granted. Accordingly, the second limb of the twin conditions under Section 37(1)(b) of the NDPS Act also stands satisfied. The Court is inclined to accept the Applicant’s prayer for bail. Therefore, the Applicant directed to be released on bail on furnishing a personal bond for a sum of Rs. 25,000/- with one surety of the like amount, subject to the satisfaction of the Trial Court/Duty Metropolitan Magistrate/Jail Superintendent, subject to fulfilment of conditions imposed - bail application allowed. ISSUES: Whether the accused is entitled to bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act'), given the recovery of contraband exceeding commercial quantity.Whether the accused had 'conscious possession' of the narcotic substance within the meaning of the NDPS Act.Whether the statutory presumption under Section 54 of the NDPS Act applies to the accused based on the circumstances of seizure and arrest.Whether the confessional statement under Section 67 of the NDPS Act can be relied upon as substantive evidence in absence of corroboration.Whether procedural lapses and inconsistencies in investigation affect the prosecution's case against the accused.Whether the accused's prolonged pre-trial detention infringes fundamental rights under Article 21 of the Constitution. RULINGS / HOLDINGS: On bail under Section 37 NDPS Act: The accused is entitled to bail as the twin conditions under Section 37(1)(b) are satisfied, i.e., 'there are reasonable grounds to believe the accused is not guilty' and the accused is 'not likely to commit any offence while on bail.'Conscious possession: The prosecution failed to establish 'conscious possession' as defined by law since there is no direct or circumstantial evidence demonstrating the accused's knowledge of the illicit nature of the parcel's contents.Section 54 presumption: Although the statutory presumption under Section 54 applies upon seizure of commercial quantity, the accused has discharged the onus by raising reasonable doubt as to possession and knowledge.Confessional statement under Section 67: The statement alone, without corroborative evidence such as call records, financial transactions, or digital communications, is insufficient to sustain the accusation.Investigation lapses: Significant procedural inconsistencies, including failure to investigate the named neighbour and ambiguity regarding telephone calls to the courier office, undermine the prosecution's case.Pre-trial detention: The accused's prolonged incarceration of approximately two years without trial infringes the fundamental right under Article 21 and amounts to punitive detention. RATIONALE: The Court applied the statutory framework under Section 37 of the NDPS Act, which mandates satisfaction of twin conditions for bail when commercial quantity of narcotics is involved.The Court relied on authoritative precedent defining 'conscious possession' as requiring both physical custody and knowledge with intent to exercise control, citing Rakesh Kumar Raghuvanshi v. State of Madhya Pradesh and Mohan Lal v. State of Rajasthan.The Court emphasized the limited probative value of confessional statements under Section 67 of the NDPS Act absent independent corroboration, consistent with constitutional safeguards under Articles 20(3) and 21.Investigation deficiencies, such as failure to verify the identity and role of the neighbour who allegedly instructed the accused to collect the parcel, and the unexplained discrepancy regarding telephone calls, contributed to reasonable doubt.The Court acknowledged the statutory presumption under Section 54 but held that the accused's explanation and lack of incriminating evidence justified extending the benefit of doubt at the bail stage.The Court recognized the fundamental right against prolonged pre-trial detention and the need to balance the severity of the offence with individual liberty, particularly where trial is delayed.