The Delhi High Court in an NDPS case has observed that the recovery of ‘Ganja’ from the bedroom of the husband and wife is attributable to both. It, however, granted bail to a woman on account that the substance impounded was of intermediate quantity.

The Court was deciding an application seeking bail for the applicant/wife who was accused under Sections 8(c), 20 (b)(ii)(A), 20(b)(ii)(B), 21(b), 22(c), 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The said applicant was arrested from her residence in Surat, Gujarat and brought to New Delhi.

A Single Bench of Justice Jasmeet Singh held, “I am unable to agree with the argument put forth by the learned counsel for the Applicant. The recovery of ganja from the bedroom (i.e. residential premises) of the Applicant is attributable to both, the Applicant and the husband/co-accused, Krunal Golwala. … . It is nowhere stated or argued that the Applicant and her husband were living in separate rooms or had strained relationships. The recovery was also not from a person but from a joint space and hence, to state that the recovery of 1.03 kgs made from the bedroom cannot be attributable to the Applicant would be a wrong assertion.”

The Bench noted that the bedroom is a private space shared by a husband and wife and the recovery of Ganja from the bedroom may be at the instance of the husband but the fact remains that it was recovered from the joint space of the applicant and her husband.

Advocate Faraz Maqbool appeared on behalf of the applicant/accused while Senior Standing Counsel Subhash Bansal appeared on behalf of the respondent/NCB (Narcotics Control Bureau).

Factual Background -

A case was registered in the year 2021 relating to a drug syndicate which was operating through the mobile application ‘Telegram’. Hence, Ganja was recovered from the residence of the applicant and her husband’s residence as well as from the office premises of the husband. According to the applicant’s counsel, recovery of 1.3 kg of Ganja was done at the instance of her husband and not her.

The applicant was arrested and was remanded to the judicial custody. She retracted her statement under Section 67 of the NDPS Act and thereafter, the Trial Court dismissed her application seeking bail. Therefore, the applicant was before the High Court.

The High Court after hearing the arguments of the counsel observed, “I am of the view that the chats do not show dealing of commercial quantity of contraband. In addition, the chats have also not been relatable to the recoveries made from the Applicant. The true import of chats can only be ascertained at trial. … Since the chats are not from the Telegram group ‘Orient Express’, their relevancy can only be ascertained once the parties go for trial.”

The Court held that the Telegram chats do not show dealing in commercial quantity and that no recovery has been made pursuant to the said chats.

“Though one of the chats shows that the Applicant says “buy in bulk you will get it cheaper”, the Applicant has not been found in possession of commercial quantity of contraband. … The chats seem to show that there is potential for the Applicant to deal in commercial quantity of contraband, however, ‘potential’ alone would not come within the purview of section 37 NDPS Act. … In my view, as of today, the chats show that the Applicant is a small-time consumer, sharing hash and weed with two people”, noted the Court.

The Court said that the chats reveal conversations about narcotic substances such as hash and weed, however, the same is not directly linked with the recoveries made from the applicant’s residence and office. Furthermore, the Court said that the chats which have been filed do not belong to the Telegram group ‘Orient Express’ as none of the co-accused, allegedly part of the said group, have been found on these chats which are personal chats between the applicant and two people and hence, do not fall within the purview of Section 8 of IEA (Indian Evidence Act).

“… the Applicant has been in custody as an under-trial prisoner for almost23 months i.e., since 04.10.2021. … Delay in trial has been held to be an important circumstance by the Hon‟ble Supreme Court for grant of bail, even in NDPS cases involving commercial quantity, in Jitendra Jain v. NCB SLP (Crl.) 8900/2022 … Investigation is complete and no investigation has been sought or conducted qua the Applicant since 04.10.2021. Nothing is to be recovered from her or at her instance. The charges are yet to be framed and the trial will take considerable time”, added the Court.

Accordingly, the High Court allowed the application and granted bail to the applicant.

Cause Title- Dixita Golwala v. Narcotics Control Bureau (Neutral Citation: 2023:DHC:6108)

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