Delhi High Court: An application was filed under Section 439 of the Criminal Procedure Code, 1973 seeking regular bail in case registered by the Narcotics Control Bureau, Delhi Zonal Unit (‘NCB’) under Sections 8(c), 21(c), 23(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). Vikas Mahajan, J.*, opined that the only incriminating material was the disclosure statement of co-accused Hikamtuallah Hakimi under Section 67 of the NDPS Act, who disclosed that petitioner was to receive the contraband from him. Thus, the Court granted regular bail to petitioner and held that there was no material prima facie to indicate that petitioner had entered into a conspiracy with Hikamtullah Hakimi.
Background
In the present case, a co-accused named Hikamtuallah Hakimi, an Afghan national, was apprehended on 21-04-2021 at IGI Airport and from his bag, two towels and one bed sheet were recovered which were having a pungent smell. On inspection of the said articles, it was found that a yellow powdery substance was coming out from them, and their weight was also more than usual. The said co-accused disclosed that all the three articles were dried from the mixture of heroin. Thereafter, the towels were weighed, and their weight was found to be 930 gm and 940 gm, respectively, whereas the bed sheet weighed about 1.32 kg and upon testing, the same tested positive for heroin.
On preliminary enquiry, it was disclosed by the co-accused that the said heroin was to be delivered to petitioner. Thereafter, a team was constituted to conduct a raid and capture petitioner. During investigation, petitioner revealed that he came to receive heroin on instructions of one person namely, Kudrat who was residing in Afghanistan. Petitioner further revealed his place of residence and upon search of the house, a transparent polythene containing a white milky substance was recovered. Petitioner revealed that the said substance was used to increase the weight of heroin. Thus, petitioner was arrested by respondent on 22-04-2021.
Analysis, Law, and Decision
The Court noted that the gravamen of allegations against petitioner was that he on a communication being made by the co-accused, namely, Hikamtuallah Hakimi came to collect heroin, which was to be circulated for further supply. The Court also noted that no recovery of contraband was made either from the person or the alleged premises of petitioner. A white milky substance that was recovered from petitioner’s house, on being tested by the drugs detection kit, was not found to be contraband and was alleged to be a substance which was mixed with heroin to increase its quantity.
The Court opined that Section 37 of NDPS Act would be applicable only when the quantity of recovered contraband was commercial and there was an incriminating material to show that petitioner was involved in conspiracy with co-accused Hikamtuallah Hakimi, from whom contraband was recovered in commercial quantity. The Court also opined that the quantity of contraband assumed relevance as quantum of sentence to be awarded for an offence of possessing/transporting contraband committed under the NDPS Act was dependent on the fact whether the quantity of such contraband was small quantity, commercial quantity, or intermediate quantity.
The Court observed that respondent had included the weight of two towels and one bedsheet in the weight of the total contraband which was recovered from co-accused Hikamtuallah Hakimi.
The issue for consideration before the Court was “whether carrier’s weight, i.e., towels and bedsheets, could be included for determining that the quantity of the recovered contraband was small or commercial quantity?”.
The Court relied on Hira Singh v. Union of India, (2020) 20 SCC 272 (‘Hira Singh Case’), wherein the Supreme Court held that “in case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the narcotic drugs or psychotropic substances”. The term “neutral substance” was not defined under the NDPS Act, however, the Court relied on Hira Singh Case (supra) and observed that “neutral substance in the context of contraband was to be understood as a substance which was mixed with the offending part of the contraband to either increase the weight of the entire contraband, to yield higher profits or to increase potency of the contraband or was an integral part of the contraband to facilitate the delivery or consumption of contraband”.
The Court opined that towels and bed sheet did not qualify to be a neutral substance and their weight could not be included in the weight of the contraband for determining whether seized contraband was of small or commercial quantity. Thus, there was no material on record to show that the weight of the actual content of contraband excluding the weight of two towels and one bed sheet was of “commercial quantity” so as to attract Section 37 of the NDPS Act. Further, there was nothing on record to indicate that petitioner had any knowledge of the contents of bag, which was handed over to petitioner by co-accused, therefore, lack of material in this regard with also ensure to benefit of petitioner.
The Court noted prosecution’s case that petitioner was in constant contact with co-accused Hikamtuallah Hakimi via WhatsApp and was thus, a part of criminal conspiracy in the supply of heroin. The Court relied on Bharat Chaudhary v. Union of India, (2021) 20 SCC 50, wherein the Supreme Court held that the print outs of WhatsApp messages in the absence of scientific reports could not be treated as sufficient material to establish a live link between co-accused at the stage of considering a bail application. The Court thus opined that the only remaining incriminating material was the disclosure statement of co-accused Hikamtuallah Hakimi under Section 67 of the NDPS Act, who disclosed that petitioner was to receive the contraband from him.
The Court held that there was no material prima facie to indicate that petitioner had entered into a conspiracy with Hikamtullah Hakimi. Though Section 37 of the NDPS Act might not be applicable to petitioner, the Court was satisfied that there were reasonable grounds for believing that petitioner was not guilty of the offence alleged. Thus, the Court held that petitioner was entitled to the grant of regular bail.
[Mohd Nasar v. Narcotics Control Bureau, 2024 SCC OnLine Del 771, decided on 07-02-2024]
*Judgment authored by: Justice Vikas Mahajan
Advocates who appeared in this case :
For the Petitioner: Zishaan Iskandari, Advocate
For the Respondents: Subhash Bansal, Senior Standing Counsel; Shashwat Bansal, Advocate
Buy Code of Criminal Procedure, 1973 HERE
