Weight of carriers like towels, bed sheet can’t be included to determine weight of contraband: Delhi High Court in NDPS case

The Delhi High Court recently held that the weight of carriers like towels and bedsheets which are used to hide drugs and narcotics cannot be included for determining the quantity of the recovered substance under Narcotic Drugs and Psychotropic Substances (NDPS) Act [Mohd Nasar v. Narcotics Control Bureau & Anr]..Justice Vikas Mahajan gave the finding while granting bail to Afghan national Mohd Nasar in a drugs case registered by Narcotics Control Bureau (NCB) in 2021 after recovery of two towels and bedsheets containing heroin from another Afghan national at the Indira Gandhi International Airport.The Court found that the NCB had included the weight of the two towels and one bed sheet in the wright of the total contraband recovered from co-accused Hikamtuallah Hakimi. .Justice Mahajan prima facie opined that towels and bed sheet do not qualify to be a neutral substance. Their weight cannot be included with contraband for determining whether seized material is of small or commercial quantity, the Court said.“However, this aspect will be considered in detail by the learned Trial Court during the trial uninfluenced by the aforesaid prima facie view, but the Court cannot be unmindful of the fact that at this stage of consideration of bail application of the petitioner, there is no material on record to show that the weight of the actual content of contraband excluding the weight of two towels and one bed sheet is of “commercial quantity” so as to attract the rigors of section 37 of the Act,” it added..The stringent conditions of bail under Section 37 of NDPS Act become applicable once the recovered contraband is found to be of commercial quantity.The Court then looked into other allegations against Nasar (petitioner), particularly that he had come to meet the co-accused Hakimi near Krishna Mandir in Malviya Nagar to collect the heroin.It found nothing on record to indicate that Nasar had any knowledge of the contents of the bag which was handed over to him by Hakimi. On WhatsApp chats between the two, the Court said they have not been verified despite NCB having seized the petitioner’s mobile phone..The Court then proceeded to evaluate the disclosure statement of Hakimi who claimed that Nasar was to receive the contraband from him. In this regard, the single-judge noted that the Supreme Court has held the disclosure statement of co-accused is not admissible in evidence.“Therefore, there is no material to prima facie, indicate that the petitioner had entered into a conspiracy with Hikamtullah Hakimi,” it added..Thus, the Court opined that stringent conditions under Section 37 of NDPS Act may not be applicable to the petitioner. The bench also said that it was satisfied that that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged. “Further, it is not the case of the respondent/NCB that the petitioner was involved earlier also in any offence under the NDPS Act or has any criminal record, therefore, petitioner is not likely to commit any offence while on bail,” the Court opined.Accordingly, the Court granted bail to the accused subject to several conditions..Advocate Zishaan Iskandari, Y K Singh, Sayema Mubin, Madhur Mittal and Naved Ullah represented the petitionerSenior Standing Counsel Subhash Bansal with Advocate Shashwat Bansal represented the NCB.[Read Order]