1. This bail application has been filed by the accused petitioner under section 439 CrPC in connection with FIR No. 0519/2023 registered at Police Station Vishwakarma, District Jaipur (West) for the offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’).

2. The FIR No. 0519/2023 was registered on 11.10.2023 with the facts that the police personnel received an information from a special informer that there is a person in Flat No. 208 on the second floor of the building- Gokulam who is likely to have the illegal drugs. After complying with the provisions of section 42(2) of the Act of 1985 and considering the fact that in seeking warrant some time may take place, whereas immediate action is necessary, the SHO, Police Station Vishwakarma, Jaipur along-with other Constables having necessary equipment including electronic weighing scale left for the building-Gokulam. When nobody agreed to be the independent witness of search and seizure, two police personnel were made the witnesses and their consent was sought. On entering in Flat No. 208 on the second floor, a person was found sitting in front on a mattress with the black bag and on seeing the police in uniform he got up and tried to run away. He was surrounded and caught with the help of the members of the team and he was instructed to remain sit there. When his name and address was asked, he stated his name as Hanif Khan s/o Haji Muneer Ahmad (accused petitioner), r/o Flat No. 52, Shiv Nagar, Murlipura Scheme, Police Station Murlipura, Jaipur. The said person was informed that the flat has to be searched and if he wishes, he can get the search done in the presence of a Gazetted Officer or a Magistrate and he was informed of his legal rights. A notice under section 50 of the Act of 1985 was issued to Hanif Khan (accused petitioner) for written consent regarding search. He gave the consent for his search and bag and so also the flat. During search two transparent plastic bags were found in the bag which was with Hanif Khan (accused petitioner). In the inside of one of the plastic bag a brown colour substance was found. When the bag was opened, examined and smelled, the illegal drug MDMA was found therein. A white coloured substance was found in another plastic bag which was seen, examined and smelled and found to be drug Cocaine for which Hanif (accused petitioner) was not having any permit / licence for keeping or transporting and the same was a crime under section 8/21 of the Act of 1985. On weighing the substances, the MDMA total 32 gm. and 17 mg. was found in one of the plastic bag and the net weight of the plastic bag separately was found to be 17 mgm and thus weighing of illegal drug MDMA without plastic transparent bag was found to be 32 gm. which was seized. The other illegal drug Cocaine was found to be 2 gm. and 3 mg. and the weight of the plastic bag was found to be 23 mg and thus, the net weight of Cocaine was 1 gm. and 18 mg. and the same was also seized from the possession of the accused petitioner which is found to be an offence under the NDPS Act.

3. Counsel appearing for the accused petitioner submitted that the quantity of Cocaine recovered from the possession of the petitioner is less than the commercial quantity i.e. 2 gm, however, the quantity of MDMA recovered from the possession of the petitioner is more than the commercial quantity. Counsel further submitted that the accused petitioner has kept the search and seizure substance for his personal consumption. Counsel also submitted that the flat from where the recovery has been made, does not belong to the petitioner and the said flat is not in conspicuous possession of the petitioner. Counsel further submitted that there is violation of provision of Section 52A of the Act of 1985 and there are bleak chance of conviction of the accused petitioner as in cases of violation of provision of section 52A of the Act of 1985. The law is well settled that in such an offence the accused cannot be convicted. Counsel further submitted that the accused petitioner is behind the bars since 11.10.2023, therefore, he may be released on bail.

4. Learned Public Prosecutor vehemently opposed the bail application and submitted that there is recovery of contraband from the possession of the petitioner which is more than the commercial quantity. He further submitted that the provision of section 37 of the Act of 1985 clearly speaks that no person accused of an offence punishable for the offences involving commercial quantity may not be released on bail because at this stage it cannot be said that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

5. Considered the submissions made by the learned counsel appearing for the accused petitioner as well as learned Public Prosecutor and also perused the challan papers.

6. It is a fact on record that Narcotic Drugs / Psychotropic Substances namely; Cocaine and MDMA have been recovered from the possession of the accused petitioner and the quantity of such substances is more than the commercial quantity as notified by the Government.

7. The provision of section 37 of the Act of 1985 clearly speaks that prima facie from whose possession contraband more than commercial quantity is found, is guilty of committing offence under the provisions of the Act of 1985.

8. Bare reading of provision of section 37 of the Act of 1985 speaks that it is for the accused to show that he is not guilty of such offence. Normally, a person from whose possession some contraband more than the commercial quantity is found, cannot say that he is not guilty of an offence, but in exceptional circumstances when he could show that either he has been falsely implicated or he could show that he was authorized to possess the same, then it can be believed that he is not guilty of such an offence. In the present case, the counsel appearing for the petitioner has not raised any such argument which could convince the Court that there are reasonable grounds for believing that he is not guilty of such an offence. The only submission made by the counsel for the accused petitioner is in regard to non- compliance of provisions of section 52A of the Act of 1985.

9. This Court in the case of Shakti Gurjar Vs. State & Anr. (S.B. Criminal Misc. Bail Application No.13814/2023) decided on 30.07.2024 after considering the law laid down by the Hon’ble Apex Court and various other Courts has observed in paras 27 to 31 as under:-

“27. This Court has to go by the provisions of statutory law because any order of the Court without considering the provisions of the law in force or contrary to the same is said to be per- incurrium and this Court would like to restrain itself from passing such order.

28. In the present case there is recovery of contraband weighing more than the commercial quantity as notified and also there are five other criminal cases pending against the petitioner. There are no reasons for satisfaction of this Court so as to believe that the accused petitioner is not guilty of offences under the provisions of the Act of 1985 and that he is not likely to commit any offence while on bail as he is already facing five other criminal cases.

29. Drug abuse has taken its toll in almost all the districts of Rajasthan. The addicts primarily belong to youth age. The high rate of drug consumption is leading to issues like illegal trade, drug trafficking, and smuggling. The problem of drug addiction has a significant bearing on drug trafficking which has become a significant challenge for governments and social reformers. The NCB reports that the main internal factor for drug trafficking in India is the illicit cultivation of opium, poppy and cannabis. Also, the diversion from licit opium sources to illegal opium production is a major concern. In the trends of 2020, Rajasthan is among the 3 major states, along with Uttar Pradesh and Madhya Pradesh, from where the opium is trafficked to other parts of the country.

Young Indians addicted to drugs are spoiling their lives. Drug addiction is the worst kind of addiction and it causes numerous mental and physical ailments and such youth go often into depression. In order to cope up with stress and depression, they try to consume more drugs and keep spiraling around and are never able to leave this addiction. They lose their sense of control and become vulnerable and many of them commit suicide or get involved in different kinds of criminal activities.

Drug abuse has a direct impact on social and economic aspect of the nation. The impact of drug is realized in workplace, family and the society. It results in violence at home and gang wars in cities, increase crimes and even stresses the public health system and we find young mass addicted to drugs which leads to unsafe life. Addiction not only breaks the family harmony but also puts high economic burden on the society. The economic impact due to Drug abuse is immeasurable.

According to UNDCP report, the economic effects of drug abuse can be measured in two forms, i.e. cost of government drug enforcement policies and the lost human productivity such as lost wages and decreased production that results from illness and premature deaths related to drug abuse. There are many hidden costs relating to disturbance in social life, wastage of young energy.

One can notice apparent rapid changes in societal alignment owing to the reduced family and community cohesiveness, increased unemployment and underemployment, economic and social marginalization and increased crime as a direct result of the problem of drug abuse. Youth forms the basic unit of the society. The harmony of the society depends on its younger members. When the members of society become drug abusers then it disturbs the entire societal harmony. Every society suffers due to even a single drug abuser. It affects the life style and also financial condition of the society concerned.

It is a common practice in the rural areas for the farmers to leave their tools and machineries lying in the fields unsupervised. The drug addicts often end up resorting to the commission of offences like stealing of tools, equipments and machineries of the farmers of their safe and regular farming style. Thus, it develops a strong correlation between addiction and an increased risk of commission of offences.

When drug problems in a community are perceived as serious, people must face unpleasant alternatives. The can accept the reality of drugs in their neighbourhood, adapting to a situation that they cannot hope to change immediately; they can change their lifestyle to reduce the threat of drug dealing and violence in their localities; they can change the environment by some form of community action either with or without the support of the police. Many of these alternatives are not available to persons living in poverty or with limited means. Thus, with fewer choices, the poor pay a greater personal price for drug problems than others.

One aspect of this connection between drugs and crime is temporal causation; that is involvement in property crime generally precedes the addiction career. After addiction occurs, property crime increases and narcotic use is further increased. Drugs and crime cannot be considered separately, in isolation from each other, especially if they emerge from a common set of circumstances. It is a well accepted fact that drug use is a strong correlate of being booked for a criminal offence, but age is the more important correlate of criminal involvement and poverty an even more important predictor of property crime.

30. It can thus very precisely be concluded that what is alluring for one can be daunting for the others. The addicts are, therefore, an added burden to the law-abiding population.

31. Having considered the material available on the record in the form of charge-sheet and the pendency of five other criminal cases against the petitioner, in the opinion of this Court it cannot be said at this stage that the accused petitioner is not guilty of the offences involving commercial quantity of the contraband and that he is not likely to commit any offence while on bail.”

10. As regards the submissions made by the counsel for the accused petitioner that there is violation of provision of Section 52A of the Act of 1985, this Court after considering the various judgments has observed in the case of Shakti Gurjar (supra) in para 16 as under:-

“16. Since no satisfaction of the Court has been recorded as required under section 37(b)(ii) of the Act of 1985, the aforesaid orders/judgments cannot be followed to grant relief to the petitioner. The judgments passed in the case of Boota Singh (supra), Raju Munim (supra) and Roy V.D. (surpa) are the cases where there is non-compliance of certain provisions of the Act of 1985 and the right of an accused was considered at the stage of the trial/appeal. The non-compliance of any of the provisions of the Act of 1985 can only be scrutinized only on the basis of the evidence to be led before the trial court i.e. the evidence of the material witnesses who are connected with the compliance of such provisions. Until and unless those witnesses who are connected with compliance of such provisions are got examined by the trial court only then it can be considered and scrutinized whether the compliance of any such provision has been made or not or if same has not been made then what were the reasons or causes which led to such non-compliance because some reasons or causes may be very material to be considered by the trial court or the appellate court.”

11. Having regard to the submissions made by the counsel for the accused petitioner and so also the learned Public Prosecutor and the law laid down by this Court in the case of Shakti Gurjar (supra), and also the material fact that there is a recovery of Narcotic Drugs and Psychotropic Substances more than the commercial quantity from the possession of the accused petitioner, at this stage it cannot be said that the petitioner is not guilty and therefore, in view of the provisions of section 37 of the Act of 1985, this Court is not inclined to enlarge the accused petitioner on bail.

12. Accordingly, the bail application filed by the accused petitioner under section 439 CrPC is dismissed.

13. In view of the submissions made by the counsel appearing for the accused petitioner regarding non- compliance of provisions of section 52A of the Act of 1985, this Court deems just and proper to direct the trial court to expedite the trial and conclude the same as early as possible.