In a significant observation, the Gauhati High Court noted that the rigors of Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS) would not apply to drivers of courier services who are not aware as to what has been loaded in the vehicle they drive.
Section 37 of the NDPS Act bars the court from granting bail to an NDPS accused when a commercial quantity of contraband is involved, unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
The single judge bench of Justice Ajit Borthakur was hearing a bail petition filed by one Lorik who is a driver by profession and granted him bail. He was engaged as a driver by VRS Logistics Ltd.
The accused submitted that he was not aware of what was loaded in the vehicle and was only discharging his duties as per his assignment roster. The judge also considered the fact that the police’s diary also mentioned that the narcotics suppliers would have misused the vehicle.
The bench observed, “It transpires (from diary entry) that the accused is the driver of truck of VRL Logistics and it is his duty to deliver the consignments of various goods loaded by the said company to the consignee as per challan. After a thorough investigation, the investigating officer in his note, dated March 7, noted that ‘narcotic suppliers/peddlers’ misused the ‘vehicles of VRL Logistics to fulfill their malicious intent’, which were just carried by the accused driver.”
Considering the finding of IO a final outcome of the investigation, Justice Borthakur observed, “Therefore, this Court is prima facie of the opinion that rigors of Section 37 of the NDPS Act are not attracted in the peculiar backdrop of facts and circumstances concerning the present accused.”
As per Lorik’s duties, he was supposed to drive the truck from the company’s unit at Gorchuk in Guwahati to Agartala. The truck was carrying mouth washers which were purchased by a medical agency in Varanasi, Uttar Pradesh on February 2, 2022.
On February 4, his vehicle was stopped by police at a special Naka check post at National Highway (NH) 08. The police had recovered 10 cartons of Phensedyl containing 3,000 bottles of Phensedyl Cough Syrup.
The prosecution submitted that the recovered bottles were sent for forensic tests and the reports indicated that the sample of Phensedyl Cough Syrup gave positive tests for Codeine (present as Codeine Phosphate) and contained 186.5 ml. per bottle.
Therefore, the bail application was opposed citing the commercial quantity of the seized vehicles.
However, Justice Borthakur noted that the driver was not aware of the material that was loaded in the vehicle and he was lodged in prison for over 104 days. The High Court bench granted him bail on a surety of ₹50,000.