NDPS Act | Unjust To Grant Bail Only On Minute Difference In Colour Of Drug In Seizure Memo And FSL Report: Punjab & Haryana High Court

The Punjab and Haryana High Court, in an NDPS case involving commercial quantity of heroin, said that bail cannot be granted merely because there is a 'minute difference' between the colour of the contraband seized and the colour of the substance described in the Forensic Science Laboratory (FSL) report. 

Counsel for the petitioner was seeking bail primarily on the ground that the colour of the drug recovered, as per the seizure memo, is described as 'bhura'—which, according to him, means brown—whereas in the FSL report, it is stated to be 'off-white' in colour.

While noting that colour of the seized contraband was "dark off white" and the forensic laboratory reported the same to be "off-white", the Court said "...little bit of fiction would change the shade and it is very difficult for an ordinary person to state whether the colour is off white or bhura. Further bhura does not mean brown. It is somewhat a shade between of white and brown. Simply because in the laboratory, the word used was off white, it would not mean that the sample was initially brown. The laboratory people having scientific temperament would analyse the colour in a better way than the normal person and the only exception is being the colour artist," said the Court.

It added further that the police officer were not expert of colours nor proved to be somebody who has scientific background to understand the difference in colour nor is shown to have been artist of colour.

"As such, without giving an opportunity to the Investigator to explain the difference in colour, it shall be extremely unjust for this Court to grant bail simply on the minute difference of bhura (dark off white) as stated in the recovery and off white as stated by the laboratory,"the bench opined.

The Court was hearing a regular bail plea under Section 21-C and 29 of the NDPS Act and according to prosecution, based on a chance recovery, the Police seized 305 grams of Heroin from the petitioner named Sonu and co-accused.

Opposing the plea, the State counsel submitted that there is no difference of colour and infact, in Punjabi language, off white can also be termed as brown (bhura). These are the shades of colours which would depend upon the perception of person and even some people can be colour blind to the extent of noticing the exact colour.

After analysing the submissions the Court rejected the ground and further noted that the quantity allegedly involved in this case is commercial. Given this, the rigors of Section 37 of the NDPS Act apply in the present case.

"Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC," the judge observed.

The Court added that both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail.

While noting that investigation reveals sufficient prima facie evidence against Sonu and the petitioner's custody is 01 year and 08 months, which cannot be considered prolonged as the minimum sentence prescribed for the offense, is 10 years, the Court refused to grant the relief.

Mr. Ruhani Chadha, Advocate for the petitioner.

Mr. Sukhdev Singh, A.A.G., Punjab.

Title: Sonu @ Rinka v. State of Punjab

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