PALSHIKAR, J. - (1.) BY this petition, the petitioner seeks an order from this Court, directing his release from detention, under the provisions of Sec. 439 of the Code of Criminal Procedure, 1973, as he is in custody for being suspected of having committed an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act' ).
(2.) THE facts giving rise to the application for bail stated briefly, are that on 29. 4. 2000, the Superintendent of Police, Bhilwara, on suspicion that some intoxicating substance is likely to pass through the State, ordered sealing of the roads (Nakabandi) and checking of all the trucks passing on these roads. One Truck bearing No. GJ. 7x-2648, coming from Chittorgarh, was stopped, the cabin was occupied by the driver, cleaner and one more person. THE name of the driver was Onkar, the name of the Cleaner was Gheesa Lal and the third person Ramesh Chandra was the owner of the truck. Enquiries further revealed that the truck was loaded with Doda Post. THE occupants of the truck were, therefore, given notice u/s. 50 of the Act and it was checked. THE truck contained 78 bags of Doda Post, weighing 3. 3 quintals. THE present applicant-accused was thereafter, arrested and is in custody since then. It is contended on behalf of the applicant while arguing for release of the accused on bail that in the present case, bar as spelt out by Sec. 37 of the Act, is not attracted and the petitioner applicant is liable to be released on bail. It is further contended that the entire Doda Post belonged to a person who was holding a valid licence for dealing in Doda Post and at his instance, the goods are being transferred. The petitioner is, thus, a transporter of the goods on behalf of the legitimate owner thereof, who holds a licence to deal in Doda Post. According to the learned counsel, therefore, the owner of the truck has not committed any offence under the act and, therefore, as contemplated by Sec. 37 thereof, he is liable to be released on bail, pending trial. Several questions regarding grant of bail under the NDPS Act arise daily, bail is claimed inspite of Sec. 37, on various grounds. Several important aspects are liable to be considered in right perspective, because I am dealing in this case with a fundamental right of an individual guaranteed by Article 19 of the Constitution and the right can be suspended only by the process of law. The due process of law, that we are facing today, is contained in the NDPS Act. The provisions of Sec. 37 thereof probibit grant of bail which was the direct consequence of restoration of right of liberty in certain cases only. Taking into consideration the recurring nature questions being argued for bail in such matters, it will be proper to write as exhaustively as possible, an order dealing with all aspects of grant of bail in the face of Sec. 37 of the NDPS Act. It would, therefore, be worthwhile, in the circumstances, to note in extenso, the provisions of the NDPS Act itself, the object of which was sought to be achieved by effective implementation of the provisions of the Act without losing sight of the fact that at stake is the fundamental right guaranteed by the Constitution, which is sought to be suspended by the provisions of Sec. 37 of the Act requiring refusal to release the accused on bail. The trafficing in the dangerous drugs psychotropic substances intoxicants etc. was controlled by the Prohibition Act which dealt with the manufacture, sale and confirmation of alcohol, the Opium Act of 1857 which dealt with manufacture, sale, consumption etc. of the opium, which was later replaced by the Opium Act of 1978 and for other dangerous drugs, it was Dangerous Drugs Act of 1930, with the passage of time, and the developments in the field of illicit drug trafficing and drug abuse at national and international level, several defeciencies in the existing laws were noticed and, therefore, an Act to consolidate and amend the law relating to Narcotic Drugs and Psychotropic Substances was sought to be enacted. This Act was called Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985 ). It also provided forfeiture of the property dealing with trafficing in the prohibiting substances. It also provided by implementation of international convention on Narcotic Drugs and Psychotropic Substances.
(3.) THE minimum prescribed punishment for trafficing in opium is 10 years rigorous imprisonment. Since the punishments provided by the Act are stringent, enough provisions have also been made to protect the fundamental rights of the citizens, the provisions have been made to protect individual from atrocious exercise of powers under the Act by requiring the investigation to be done by a responsible officer by providing for search to be made in a particular manner and then, providing that persons, detained for violation of the provisions of the Act, may not normally be released on bail, except as provided by Sec. 37 of the Act. It is application of this provision of Section 37 that I am concerned with, in the present case. However, arguments have also been made in relation to the quantity of goods seized, the traffical environment and habitual history of Rajasthan requiring streamline interpretation of the provisions of law consistent with the object of the Act, at the same time protecting, as far as possible the fundamental and individual right of the person concerned. Arguments advanced at the bar, which are likely to be repeatedly raised, may be noted first: 1. That the embargo put on grant of bail under Section 37 of the Act is not total. 2. That in the provision, certain exceptions exist within Section 37 itself and for those exceptions, bail can be granted. 3. That in view of the authoritative pronouncements of the Hon'ble Supreme Court of India, holding provisions of Sec. 42 and 50 as mandatory and holding that violation of those provisions, if it arises, must result in acquittal of the accused. Then provisions of Sec. 37 can always be invoked and bail can be granted. Differently put the argument is prima facie obvious violation of provisions of Sec. 42 and or 50 of the NDPS Act is one of the exceptions mentioned in Sec. 37. 4. That for the past centuries in Rajasthan, occasional consumption of opium on certain festivities or mornings is traditionally accepted. If opium water is not offered during marriages of funerals, it is treated as an individual insult. Consumption of opium water as an addiction is also rampant in Rajasthan for generations. Usually, it is a concoction extracted after boiling Doda Post or after soaking Doda Post in water. It is pertinent to note that Doda Post means the dry poppy flower after opium milk is extracted from it and the seed is removed from it, very negligible traces of opium remain in the dry poppy flower and husk and consequently, a large quantity of husk is required for producing intoxicating concoction powder. It will have to be noticed that a vast number of people in Rajasthan keep some Doda Post (husk) with them to do "manvaar" on occasions. Stocking of husk by an addict for intoxicating concoction is one thing and keeping of some husk for some special occasion is another thing. The argument advanced is that possession of husk to some extent, therefore, should be considered as an exception as contemplated by Sec. 37 of the Act. This aspect, therefore, should be kept in mind while granting or refusing bail in matters under the NDPS Act. 5. Prima facie, absence of evidence pointing out conscious possession of the contraband by the accused plays a vital role in the matter of grant of bail. Sec. 37 should be construed to mean if the possession is not conscious, the exception mentioned in Sec. 37 becomes applicable. 6. Seizure of the contraband from the place, where public access is available, is also an important aspect which will have to be considered. As an illustration, it was submitted that a man seeks permission to travel in a truck from the owner thereof for few kms. and he is, therefore, riding that truck, which happens to be stopped, checked and contraband is disclosed. Then, the possession of the contraband cannot be attributed to every occupant of the truck. There must be prima facie connection with the occupant and the contraband and knowledge of possession by the occupant. ;