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2010 (5) TMI 906 - DELHI HIGH COURT

2010 (5) TMI 906 - DELHI HIGH COURT - TMI - WP (CRL.) NO. 485 OF 2010 - Dated:- 21-5-2010 - A.K. Sikri And Ajit Bharihoke, JJ Appellant Rep. by : Mr. B. Kumar, Sr. Advwith Mr. Naveen Malhotra, Adv. Respondent Rep. by : Mr. A.S. Chandhiok, ASG with Mr. V.B. Niren, CGSC, Mr. Rajesh Manchanda & Ms. Akriti Gandotra Advs JUDGEMENT Per: A.K. Sikri, J: 1. On 24th September, 2009 a search operation was launched in the residential premises of the petitioner by the officials of the Directorate of Enfo .....

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9. 2. It is the allegation of the petitioner in this writ petition that since officials of the Directorate of Enforcement could not find any incriminating material against him, they felt defeated and, therefore, started searching a trap to implicate the petitioner or to bring him within the provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as PML Act ). The premises of the petitioner was thereafter again searched on 5th December, 2009 by the officers of the Narcotic .....

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r the world for sale, purchase, transportation of narcotic drugs, import into India, export from India or transshipment of the said narcotic drugs and psychotropic substances etc. and was in fact indulging in such activities. It was further alleged that the involvement of the petitioner in such activities was apparent from the facts disclosed by the petitioner in his statements recorded on 5th December 2009 and 6th December 2009 under Section 67 of the NDPS Act and also from the inputs provided .....

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arrated in their first application. At the same time, the petitioner also moved an application alleging that he had been falsely implicated in the case; during the police remand he was interrogated by the Directorate of Enforcement, DEA (USA) and other agencies in the office of NCB and was tortured; his signatures were forcibly obtained on blank papers; he was forced to write a statement which was dictated by NCB officials and officials of other agencies; no recovery of any drug was effected fro .....

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petitioner and arrested him on 11th December, 2009 under the provisions of Section 3 & 4 of the PML Act. By another application dated 15th December, 2009 the respondents again sought judicial remand of the petitioner for a further period of fourteen days stating therein that the investigation was likely to take some time. The learned Special Judge remanded the petitioner to judicial custody vide orders dated 15th December, 2009. The learned Special Judge rejected the contention of the petit .....

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for the last fourteen years and has been engaged in a business. He further alleged that his arrest was effected by the respondents only at the instance of Enforcement Directorate as they wanted to bring the case under the schedule of the PML Act. The petitioner also produced a certificate issued by Ministry of Justice, Milan, Italy, and Ministry of Justice, Modena to the effect that no criminal record pertaining to the petitioner was available either in Milan and Modena, as alleged by the respo .....

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present petition for habeas corpus and other reliefs invoking the provisions of Article 226 of the Constitution of India with the following prayers:- (a) issue of Writ of Habeas Corpus for release of the petitioner from the illegal custody . (b) further issue a writ of Mandamus/Certiorari or any other Writ order or direction for quashing of the proceedings./ arrest memo dated 06.12.2009 u/S 24 and 27A of the Narcotics Control and Psychotropic Substances Act, 1985, pending in the court of Shri S .....

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ate proceedings against the respondents for falsely implicating the petitioner in an NDPS case and punish them suitably. (f) Pass any other or such further order or orders as this Hon ble Court may deem fit in the facts and circumstances of the case in the interest of justice. 8. When this writ petition came up for preliminary hearing/admission on April 6, 2010, learned counsel for the petitioner dropped the prayer of Habeas Corpus submitting that he would confine his writ petition limited to ch .....

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ed upon to decide that issue in the present writ petition. 9. The submissions of learned Senior Counsel appearing for the petitioner was that the petitioner is a Non Resident Indian who has been residing in Dubai for the last fourteen years. As such, no case can be foisted upon him by the authorities in India invoking the provisions of Section 24 & 27A of the NDPS Act. Drawing our attention to these provisions, learned Senior Counsel argued that Section 24 of the Act deals with the engagemen .....

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which he received from others after the drug operation/activity was over. It was the submission of the learned Senior Counsel that even if it was tainted money in his hands, Section 24 & 27A of the Act would not be applicable. For this purpose, he also referred to Section 12 of the said Act as per which it had no territorial operations. He referred to the provisions of Section 8A and Section 32 of the Act as well as some other provisions and submitted that even if a case is treated to have .....

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petent court of law namely the Special Judge, NDPS and if the petitioner was aggrieved by those orders, his remedy was to challenge those orders by filing appropriate proceedings and not by way of present writ petition. On merits, learned counsel for the respondents submitted that considering the complex nature of operation involved, the authorities probing into the matter on the basis of material collected thus far were justified in arresting the petitioner. His further detention was thereafter .....

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f was that the petitioner was admittedly an Indian citizen and, therefore, as per the provisions of Section 188 of the Code of Criminal Procedure, he could be tried by a court of law in India as well, even if the offence is committed outside India. Mr. Manchanda, learned counsel appearing for the Narcotic Department also produced the record containing the material/information received from the authorities in Dubai, Italy and Modena. 11. We have considered the submissions made by counsel of eithe .....

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nnabis plant; (iii) Engaging in the production, manufacture, possession, sale purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transshipment, of narcotic drugs or psychotropic substances; (iv) Dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or (v) Handling or letting out any premises for the carrying on of any of t .....

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ent for external dealings in narcotic drugs and psychotropic substances in contravention of Section 12-Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorization of the Central Government or otherwise than the accordance with the conditions (if any) of such authorization granted under Section 12, shall be punishable with rigorous imprisonment for a term which sh .....

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(viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Section 36A- Offences triable by Special .....

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sions would clearly disclose that the definition of illicit traffic is very wide and even those handling or letting out any premises for carrying on any of the activities referred to in Sub-Clauses (i) to (v) of the definition are covered by the said definition. Not only that, whosoever finances these activities is also treated as indulging in illicit traffic . Section 24A of the Act provides for punishment to those who indulge in financing, directly or indirectly, any of the activities specifie .....

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far does indicate the possibility of launded money received by the petitioner and hawala money which is being rooted again to facilitate illegal traffic where the possibility of role of the petitioner in financing the said illicit traffic, directly or indirectly, cannot be ruled out. Therefore, it cannot be said that there is no jurisdiction with the Special Judge to deal with this matter. The submission of the learned counsel for the petitioner that even on the basis of admitted facts no case o .....

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