HC cautions against misuse of 'drug money' label in NDPS cases

The Punjab and Haryana High Court has sounded a note of caution against the growing tendency of branding petty cash seized from drug accused as “drug money” to invoke the stringent provisions of the NDPS Act and attract the bail restrictions.

Granting regular bail to an accused in a case allegedly involving 150 grams of heroin, Justice Anoop Chitkara asserted: “There has been a trend observed where even petty amounts recovered from the accused are labelled as drug money. No explanation is provided for how such petty amounts, which could be for personal expenses or travel expenses, are considered drug money.”

The Bench, during the course of hearing, was told that the accused was seeking bail in a case registered at Chheharta police station in Amritsar on June 11 under Sections 21(B), 27(A), and 29/61/85 of NDPS Act. It was alleged that the police, in addition to 150 grams of heroin, also recovered Rs 2,500 from a polythene bag.

Justice Chitkara asserted rigors of Section 37 of NDPS Act – dealing with commercial quantity of narcotics – would not apply to the case, given the quantity involved. The Bench added that Section 27A— which punishes financing illicit trafficking or harbouring offenders with a minimum 10-year sentence — also could not be invoked without prima facie proof of financing or aiding the drug trade, paving way for his release on bail.

The judgment is significant as Sections 27A and 37 of the NDPS Act are linked. An offense under Section 27A automatically invokes the strict restrictions on bail specified in Section 37, making it extremely difficult to get bail for those accused of financing or harbouring drug offenders.

Justice Chitkara asserted the police had no evidence to term the amount as “drug money” and invoked the stringent penal provision of Section 27-A just to trigger the legislative restrictions placed on bail.

“At the stage of invocation of Section 27-A, there was no prima facie evidence of financing, directly or indirectly. Thus, the rigors of Section 37 of the NDPS Act shall also not attract,” Justice Chitkara asserted, while dealing with the technical aspect of the matter.

“Given the above, and without commenting on the case's merits, and considering the petitioner’s pre-trial custody, the weight of the drugs, coupled with the other factors peculiar to this case, further pre-trial incarceration is not justified at this stage, subject to the terms and conditions of this order,” Justice Chitkara asserted.

The Bench also referred to the need for judicial caution and proportionality in bail decisions, while observing that the liberty of an under-trial could not be curtailed indefinitely in the absence of solid evidence.

“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative,” the Bench observed.