Multiple Accused In A NDPS Case & Question Of Commercial Quantity

Muthu Kumar & Ors. Versus Station House Officer 2008(2)KLT 890(DB). In this case, the allegations in the charge sheet was that out of the total quantity of 31.150 k.grams of ganja, the 1st accused was found carrying 15 kg and 50 grams folded in his waste, the 2nd accused was found in carrying 6 kg in a bag and 5 kg in a suit case and 50 grams in his waste and 3rd accused was carrying 5 kg and 50 grams in his waste. The court noted thus: “Even though total quantity as above is a commercial quantity, each of the accused was in possession of only a lesser than the commercial quantity. Recently, Delhi High Court, while granting default bail to some NDPS accused, had referred to this judgment by Kerala High Court.

In Amar Singh Ramjibhai Barot vs State Of Gujarat AIR 2005 SC 4248 : (2005 (7) SCC 550) , the court considered the appeal filed by the accused were convicted under Sections 17 and 18 read with Section 29 of the NDPS Act for individually and jointly possessing 920 grams of opium and 4.250 kgs. of opium. Before the Apex Court, the accused contended that the High Court erred in taking the total quantity of the offending substances recovered form the two accused jointly and holding that the said quantity was more than the commercial quantity. The Supreme Court upheld the finding of the High Court that the appellant accused is liable to be convicted for an offence under Section 21(c) of the Act for the reason that he was individually found having in possession of commercial quantity of the contraband substance. But the court made the following observation in the judgment: “It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted”.

Before various High Courts, the accused have cited the above judgment to drive home the point that, though the collectively seized quantity is more than commercial quantity, however, the quantity in possession of the individual accused was less than the commercial quantity. The following are some of the judgments which accepted this contention and granted bail.

Bombay HC

Deepak S/O Pandurang Chauhan vs State Of Maharashtra: “The learned counsel for the applicant relies on the judgment of the Hon’ble Apex Court in the case of Amarsingh Rajibhai Barot vs. State of Gujarat, reported at 2006 ALL MR (Cri) 229 (SC), wherein it is held that where two accused persons were found together with heroine more than the commercial quantity but individually less than the commercial quantity, Section 29 of the NDPS Act is not attracted. In the instant case, though the collectively seized quantity is more than commercial quantity, however, the quantity in possession of the applicant is less than the commercial quantity. In these circumstances, considering the quantity seized and considering the aforesaid judgment of the Hon’ble Apex, this Court is inclined to grant bail to the present applicant. “

Punjab and Haryana HC

Arvind vs State Of Haryana I have considered the submissions of learned counsel for the parties and in the light of the position noted above, especially of there being recovery of only 20 grams of heroin from the petitioner and of the same not being clubbable with recovery from other co accused so as to work out commercial quantity in view of the decision of Hon’ble the Supreme Court in Amar Singh’s case (supra), besides, investigation being complete, challan having been presented, though charges are yet to be framed, resultantly, trial would take considerable period of time due to circumstances prevailing on account of Corona Virus Pandemic, I am of the view that no useful purpose would be served by keeping the petitioner behind bars.

Sandy Malik And Sunny vs State Of PunjabI find that it was from personal search of the petitioner that 20 grams of smack was recovered while another 80 grams of smack was recovered from co-accused Bikramjeet Singh. It will certainly be debatable as to whether the petitioner can be attributed the recovery effected from co-accused Bikramjeet Singh especially in the light of judgment of Hon’ble Supreme Court rendered in Amarsingh Ramjibhai Barot vs. State of Gujarat, 2005(7) SCC 550.

Vicky Kaur vs State Of Punjab : In the case of Amarsingh Ramjibhai Barot cited supra, Supreme Court has held that “Quantity of contraband carried by both the accused could not be added to bring it within meaning of commercial quantity and Section 29 will not be attracted”. Whereas Section 36A(4) is not attracted in the present matter.   recovery of poppy husk from different persons on different date, time and place cannot be put together for the purpose of determining quantity of poppy husk and to determine that it would be commercial quantity for which 180 days is stipulated for the purpose of filing challan would be arbitrary and contrary to the factual aspects, statutory provisions and aforesaid cited decisions.

Rajo vs State Of Haryana (Held the above SC Judgment is not applicable) : Though .. learned counsel, placed reliance on the judgment of the Supreme Court in Amar Singh Ramjibhai Barot vs State of Gujarat (Appeal (Crl.) No. 1218 of 2005 dated 19.09.2005), the same is of no avail to the petitioners as no edict was laid down therein as to ‘joint possession’ in the context of a bail application. Therefore, this Court is bound by the Full Bench judgment, referred to supra. Applying the aforesaid settled legal principle to the cases on hand, it may be noted that the petitioners and Seema, the third accused, are siblings. Their relationship is not in dispute. It is also not in dispute that they were found standing together at the Bus Stand and were carrying the four seized bags of poppy straw, each of 14 kgs. One single F.I.R. was registered against all three of them. The mere fact that individual notices were issued to them under Section 50 of the Act of 1985 does not have the effect of diluting these crucial aspects. The case of the State is that they were in ‘joint possession’ of the recovered 56 kgs. of poppy straw. Given these admitted facts, it is not open to the petitioners, at this stage, to claim that they should be held to be in ‘conscious possession’ of only the specific quantity that each of them was carrying. Their relationship and the fact that they were together at the time when the recovery was effected belies such an argument and clearly makes out a prima facie case of ‘joint possession’. In consequence, the presumption as to possession under Section 54 of the Act of 1985 would operate against them and they would also have to deal with the consequential presumption of culpable mental state under Section 35 of the Act of 1985. It is for them to rebut these presumptions before the trial Court at the appropriate time. As matters stand, in the light of the Full Bench judgment of this Court, it is not open to the petitioners to ask for apportionment of the seized poppy straw amongst the three accused so as to bring it below the commercial quantity prescribed under the Act of 1985.

Mushaque Ahammed @ Muthu vs The Sub Inspector Of Police :The specific case of the prosecution is that the first accused was having in his possession 20.5000 kilograms of ganja and that the second accused was having in his possession 18.000 kilograms of ganja. The prosecution failed to prove any conspiracy between the accused to commit an offence under Section 20(b)(ii)(C) of the Act. As per Entry 55 of the Notification dated 19.10.2001 issued by the Central Government, which deals with ganja, small quantity has been mentioned as 1000 grams and commercial quantity has been mentioned as twenty kilograms. In such circumstances, the second accused could only be convicted for having in his possession intermediate quantity of ganja and not for having possession of commercial quantity of the contraband material.  The decision of the Apex Court in Amarsingh Ramjibhai Barot v. State of Gujarat  supports the above view. 

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