Under Section 439 of the Code of Criminal Procedure Shukhveer Singh v. Presence

3. The State’s case, as gleaned from the recovery memo and FIR, is that on the night of 24.01.2023 at approximately 23:05 hours, a police team led by Sub-Inspector Mohan Chandra Joshi was conducting routine patrol duty and surveillance near Kichha Road, Paharganj, Rampura, in an attempt to curb the sale and consumption of illegal drugs.

4. It is alleged that the applicant, Sukhveer Singh, and one co-accused, Anand Sharma, were observed walking from Rudrapur towards Paharganj while each was carrying a black foil packet in hand.

5. Upon being questioned, the two individuals were unable to provide any satisfactory reason for their late-night presence or for the possession of the said packets.

6. Upon inspection, the police allegedly recovered from each of the accused: 25 Buprenorphine Injection IP, 25 Diazepam Injection IP, and 25 Pheniramine Maleate Injection IP, totalling 75 injections per person.

7. The applicant allegedly admitted to trafficking the said contraband for monetary gain and disclosed that they had acquired the drugs from an unidentified person from Bilaspur.

8. Based on this recovery, the present FIR was registered under Sections 8/22 of the NDPS Act. The seized substances were subjected to chemical examination by the Forensic Science Laboratory, Rudrapur, which confirmed the presence of Buprenorphine and Diazepam in the tested samples.

9. Heard learned counsel for the Applicant, Mr. Prince Chauhan and Ms. Manisha Rana Singh, learned counsel for the Respondent, perused the records

10. Learned counsel for the applicant has contended that the applicant is innocent and has been falsely implicated.

11. It is submitted that the recovery is alleged to have been made from a public place and no independent witness was joined in the recovery proceedings, thereby violating the procedural safeguards under Sections 42, 43, and 50 of the NDPS Act. 2

12. It is also contended that the police failed to comply with the mandatory requirements under Sections 52 and 52A of the NDPS Act, particularly with regard to the preparation and certification of the inventory and sample sealing in accordance with law.

13. It is further argued that the total quantity allegedly recovered from the applicant falls below the threshold of commercial quantity as defined under the NDPS Act.

14. It is arguedthat Buprenorphine and Diazepam, each have a commercial quantity limit of 20 grams and a small quantity limit of 1 gram. The applicant is stated to have been found in possession of 25 injections each of 2 ml, which, even if taken at face value, would not amount to a commercial quantity per substance.

15. The learned counsel for the applicant also pointed out that the applicant has been in custody for more than one year and three months as of the date of the hearing, and that the trial is yet to conclude. Only three witnesses have been examined so far, and the next date of hearing is several months away. Continued incarceration would prejudice the applicant’s right to a fair and speedy trial.

16. Learned D.A.G opposed the bail application and submitted that the recovery was made in accordance with law.

17. It is argued that the accused was apprehended with psychotropic substances, and the recovery was made as part of a chance discovery during routine police patrolling. The FSL report has confirmed the presence of Buprenorphine and Diazepam in the recovered material.

18. The learned D.A.G further contends that the recovery, though allegedly not in commercial quantity when viewed per substance, collectively involves a total of 150 injections, which prima facie indicates the intent to distribute or traffic the contraband.

19. The State also submits that the applicant has a history of similar conduct and that his release on bail may lead to repetition of such offences, thereby endangering public health and social order. 3

20. After hearing the learned counsels for the parties, and upon perusal of the records as well as the relevant provisions of the NDPS Act, the Court finds the following aspects relevant for consideration: (i) Firstly, the alleged recovery was made from a public place, during patrolling. Thus, the requirements of Section 50 of the NDPS Act, which pertains to a search of persons, may not be strictly applicable as the recovery was not from the person’s body but from the hand-held foil packets. Even so, the absence of an independent witness does raise a concern regarding the sanctity and transparency of the recovery process. The explanation that no person was willing to act as a witness remains unsubstantiated. It is unconvincing in light of settled judicial principles encouraging the presence of neutral witnesses in NDPS recoveries. (ii) Secondly, as regards the quantity recovered, the quantity of the substances recovered, it is admitted by the State that the recovery from the applicant consisted of 25 Buprenorphine Injections and 25 Diazepam Injections of 2 ml each. As per the notification under the NDPS Act, the commercial quantity of Buprenorphine and Diazepam is 20 grams each. Even assuming the entire content of each 2 ml injection is active drug (which is usually not the case), the total quantity per drug remains below commercial quantity and squarely falls within the intermediate range.The Supreme Court in Tofan Singh v. State of Tamil Nadu (2020) 9 SCC 1 and other judgments has reiterated that rigorous standards must be observed in ensuring fair investigation and compliance with procedural requirements under the NDPS Act due to the severity of punishments and the inversion of the presumption of innocence. In the instant case, while the State claims procedural compliance, the material on record does not clearly demonstrate that the requirements under Sections 52 and 52A were fully adhered to; and 4 (iii) Thirdly, the applicant has been in custody for an extended period since January 2023, with no immediate prospect of the conclusion of the trial. Three witnesses have been examined so far, and further dates are months away. The trial is likely to take considerable time, and continued incarceration, in such circumstances, would violate the mandate of Article 21 of the Constitution, which ensures personal liberty and a fair trial.

21. It is pertinent to note that Section 37 of the NDPS Act imposes stringent conditions for the grant of bail only in cases involving commercial quantity. In the present case, the quantity allegedly recovered from the applicant falls within the intermediate range and not a commercial quantity, thereby taking the case out of the rigour of the twin conditions under Section 37. In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, the Hon’ble SC held that unless the case involves commercial quantity, the limitations prescribed under Section 37(1)(b) would not apply, and bail could be granted upon satisfaction of the general conditions under Section 439 of the CrPC. ORDER In view of the facts and circumstances, especially intermediate quantity of contraband, prolonged pre-trial incarceration, partial compliance with procedural mandates, and the stage of trial, this Court is of the opinion that the applicant is entitled to bail, subject to stringent conditions to ensure that he does not misuse the liberty granted. The bail application is allowed. Let the applicant, Shukhveer Singh, be released on bail in Case Crime No. 58 of 2023, under Sections 8/22 of the NDPS Act, on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Court concerned, subject to the following conditions: (i) The applicant shall regularly appear before the trial court as and when required and shall not evade the proceedings;and 5 (ii) The applicant shall not tamper with the evidence or influence any prosecution witness; It is made clear that the observations made herein are confined to the consideration of bail and shall not influence the trial proceedings. (Ashish Naithani J.)

15.04.2025 NR/ 6