MASIDUR RAHAMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner seeks bail under Sec. 439 of the Code of Criminal Procedure in connection with NDPS Case No.23 of 2018 arising out of NCB Crime No.23/NCB/KOL/2018 dated May 17, 2018 under Ss. 8(c) read with Ss. 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

(2.) Learned Advocate appearing for the petitioner submits that the petitioner is in custody for more than three and half years. He relies upon the order dated February 7, 2020 passed by the Hon'ble Supreme Court in Criminal Appeal No(s).245/2020 (@ SLP(Crl.) No.8823/2019) (Chitta Biswas alias Subhas vs. The State of West Bengal) and submits that the Hon'ble Supreme Court granted bail to a person found in possession of narcotic substance of commercial quantity. He submits that in Chitta Biswas alias Subhas (supra), the Hon'ble High Court rejected the prayer for bail by an order dated July 30, 2019 passed in CRM 6787 of 2019 after discussing the applicability of Sec. 37 of the NDPS Act, 1985 to the facts of that case. In fact, the Hon'ble High Court rejected the prayer for grant of an anticipatory bail on the ground that commercial quantity of narcotics was seized from the joint possession of the petitioner and the co-accused and in view of the statutory restrictions of Sec. 37 of the NDPS Act, 1985. He relies upon the order dtd. 19/10/2020 passed in CRM 8187 of 2020 (In the matter of: Shovon Nandi @ Mantu) and submits that a coordinate Bench after noticing Chitta Biswas alias Subhas (supra), was pleased to grant bail to the petitioner therein although being found in possession of commercial quantity of codeine mixture.

(3.) Learned Additional Solicitor General appearing for the Union of India submits that 700 bottles of phensedyl was seized from the possession of the petitioner and the same is commercial quantity of narcotics within the meaning of the NDPS Act, 1985. He relies upon 2021 SCC Online Cal 2690 (Sonu Ansari vs. State of West Bengal) and submits that, Chitta Biswas alias Subhas (supra) was considered by the High Court and in the facts of that case the prayer for bail was denied. He submits that discussions with regard to Sec. 37 of the NDPS Act, 1985 are mandatory when proceedings involve the provisions of the NDPS Act, for the purpose of considering a prayer for bail of an accused. In support of such contention, he relies upon (2018) 13 Supreme Court Cases 813 (Satpal Singh vs. State of Punjab) and (2020) 12 Supreme Court Cases 122 (State of Kerala and Ors. Vs. Rajesh and Ors).