[NDPS case] Mere non-recovery of drugs not ground for grant of bail: Mumbai court

A Mumbai court recently refused bail to an applicant from whom no drugs were recovered but who was arraigned as an accused in a conspiracy case in which the co-accused were found with commercial quantity of narcotic substances (Ravi Sanmukhani @ Arhaan Memon v. Union of India)..Special Judge Dr. AA Joglekar observed that “mere non recovery of contraband from one’s self cannot be held as a quint essential for enlargement on bail” while rejecting his bail application.Two co-accused were intercepted by the Narcotics Control Bureau (NCB) with a seizure of 56 Mephedrone along with cash. After interrogating them, the name of Ravi Sanmukhani, the present applicant was revealed and he was arrested.Through him, the name of another accused was revealed who was arrested with 53.8 grams of Mephedrone with gold and cash. Sanmukhani came to be arrested for his prima facie involvement in the crime on July 19, 2021.He was booked under Sections 8(c), 22(c), 27, 27A, 28, 29, 30 and 35 of Narcotic Drugs and Psychotropic Substances Act (NDPS Act)along with three other accused..He sough regular bail through advocate Rohit Sawant on the grounds that no contraband had been recovered from him and on the basis of his statement, a co-accused had been arrested.Sawant argued that nothing incriminating was found from the applicant’s residence though NCB was trying to portray him as a peddler..Special Public Prosecutor Advait Sethna opposed the application stating that the quantity recovered by the NCB was of commercial quantity and the involvement of the accused is absolutely located.He argued that there was incriminating material to show that:the applicant was involved in conspiracy of arranging, consumption, dealing, sale, distribution, transportation of the seized contraband held in commercial quantity;he was regularly dealing with narcotics. For this reason, the rigours of Section 37 applies and bail should not be granted. He added that chargesheet was yet to be filed..Citing a Supreme Court judgment in the case of Sambhav Parakh v. State of Chattisgarh, Judge Joglekar noted that when commercial quantity of illicit substances is recovered from one accused, in light of Section 29 of the NDPS Act, other accused from whom no recovery has been made is also not entitled to bail as they have a link in the entire operation..Even though the applicant was found in possession of contraband, he may have been in connivance with the co-accused who were found with commercial quantity, the Court said. In the said scenario, the Court concluded that rigours of Section 37 of NDPS Act applies..The prima facie material collected during the course of investigation, clearly demonstrated the factum of connivance between the applicant and the co-accused and enumerated the transactions pertaining to the contraband, Judge Joglekar observed.“The said fact translucently makes it clear that the quantum of contraband against sums and gold demonstrates for the prima-facie involvement of the applicant in this offence” the order stated while rejecting bail..[Read order]