TMI Blog2009 (7) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 was not voluntary and was retracted on 5.2.2009. The petitioner has been in custody since 25.9.2008. 3. As per the complaint, on 23.9.2008 the officers of DRI, on the basis of specific intelligence received, called two witnesses at about 13:30 hours at the office of DRI. These witnesses were briefed by the officers of DRI that they had specific intelligence that one person of African origin would be coming to M/s.Suman Business Centre, situated at A-162, Near Post Office, Hari Nagar, Clock Tower, New Delhi for booking of parcels and those parcels would be containing narcotic drugs. Around 15:20 hrs. one person of African origin alighted from an auto rikshaw at about twenty meters before the office premises of M/s.Suman Business Centre and took out three yellow coloured printed polythene bags from the said auto rikshaw and released the said auto. At that point of time, accused No.1 (Danon Armand Erick @ Peter) was apprehended and he was served a notice under section 50 of the NDPS Act, 1985. His personal search was conducted and thereafter he was taken to the office of DRI, as it was not possible to interrogate him in a crowded market place. On examination of three printed po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of 300 US $ per trip. He was informed by Mr.Emmanuel that gears were special gears which contained concealed drugs and he had to deliver the same to the courier agent. According to accused no.1 (Danon Armand Erick @ Peter), he was to deliver the parcels to the courier company. In the statement recorded on 25.9.2008, accused no.1- Peter has given out the procedure which had been followed. He stated that he booked two consignments of Iron Gears with concealed heroin for South Africa on 22.9.2008 through a courier agent of M/s.Suman Business Centre. He also stated that M/s.Suman Business Centre was paid @ ₹ 1000/- per kilogram of the gross payments of the packages so handed over by him for export. He also identified the two commercial invoices. 4. According to the petitioner, his father was working in the Ministry of Agriculture and he retired in September, 1988; his mother is a house-wife; and his wife-Suman Sharma expired in the year 2002 and besides that he also had a son and a married daughter. It is stated that the petitioner had joined as an apprentice in the National Fertilizers Limited, Delhi in October, 1979 and later on he took VRS in the year 2001 from the Natio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice, as commercial invoice was required for booking international parcels and which was done on the instructions of accused no.1. Thus it cannot be said that petitioner was in any way conscious or aware of heroin which was concealed in the iron gear. Further, no reliance can be placed on the statement made under section 67 of the NDPS Act as the same was not voluntary and the petitioner on 5.2.2009 had retracted from his statement made on 25.9.2008. 7. Section 37 of the NDPS Act reads as under: 37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973.(2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t what is not number and measure what is not space‟. The author of Words and Phrases (Permanent Edn.) has quoted from Nice Schreiber, In re3 to give a plausible meaning for the said word. He says the expression reasonable is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined‟. It is not meant to be expedient or convenient but certainly something more than that. 10. The word reasonable signifies in accordance with reason . In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. ( 2003) 6 SCC 315 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is any past history of this petitioner which would lead to a conclusion that the petitioner is likely to commit any offence if he is granted bail. A specific question was put by this Court to the learned standing counsel for the DRI- whether there is any record in their possession and/or other material in their possession to show that the petitioner is likely to commit any offence if bail is granted to him. However, the answer has been given in negative. In the absence of anything brought on record to suggest that the petitioner would commit any offence while on bail, there is no reason for this Court to draw any negative inference against the petitioner herein. 11. Coming next to the first portion of sub-section (2) of section 37, NDPS Act, admittedly, no contraband drug was seized from the possession of the petitioner. The petitioner was examined by the DRI on 25.09.2008 and in the statement, the petitioner had admitted that the consignments were booked by him as per the instructions of Mr. Peter. As commercial invoices were required for booking international parcels, petitioner had generated the commercial invoices through the computer for sending the same to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's at South Africa. 12. In view of the fact that admittedly, heroin was not seized from the possession of the petitioner herein; he was not named as an accomplice by accused no.1; in none of the statements made by prime accused- Mr.Peter, he has stated that the petitioner was aware about the contents of the silver gears or that he was involved with him; the petitioner was only a proprietor of the courier company and goods were recovered duly packed; the petitioner had agreed for some extra payment only, to generate an invoice; the respondent has been unable to show that the petitioner may commit any offence, if bail is granted to him, I consider this to be a fit case for grant of bail inasmuch as, the parameters of section 37 of the NDPS Act are fully met. The petitioner shall be released on bail on his furnishing a personal bond in the sum of ₹ 50,000/- with one surety of the like amount to the satisfaction of the trial court, subject to the condition that (i) petitioner will not tamper with the evidence or contact or influence any witness; (ii) the petitioner shall surrender his pass-port (if any), before the concerned court; and (iii) the petitioner shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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