TMI Blog2009 (1) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner/accused who seemed to be waiting for the said car. DRI officers continued to stay in their own car and watched from some distance that a person had alighted from the said Tata Indica Car and talked to the petitioner and when DRI officers tried to intercept the said car, the person who had come out of the car managed to escape whereas petitioner got inside the car which took U-turn and sped away towards Delhi. 2. The said vehicle was finally intercepted and stopped by the DRI officers opposite Shiv Murti, near Mahipal Pur, New Delhi at around 7.30 P.M. The DRI officers looked inside the car but did not find anything incriminating on or underneath the seats of the car. Thereafter, on the asking of the DRI officers, the driver of the car opened the dickey of the car wherein a black coloured zipper trolley suitcase was found. DRI officers also inquired about the identity of the person who was sitting inside the car. One of the occupants was the petitioner. However, the driver of the car expressed his ignorance if any narcotics drugs were being carried in the car. The petitioner is alleged to have admitted that he had to take delivery of the suitcase containing 5 kg hero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not conducted by a Magistrate or a Gazetted officer. 7. Notice under Section 50 of the Act allegedly served upon the petitioner was not in accordance with law. It is also argued that DRI officers did not offer their search to the accused persons thereby violating the provisions of the said Section. It is also submitted that DRI officers had searched the vehicle at the spot where it was intercepted but nothing incriminating was found in the car or underneath the car seats. 8. It is further submitted by learned counsel for the petitioner that the alleged declaration of petitioner to the fact that he was to take delivery of the suitcase containing 5 kg of heroin concealed therein and lying in the dickey of the Indica Car in which he was travelling, was obtained by the DRI officers on the spot and the petitioner was arrested before notice under Section 67 of the Act was served upon him, as the said notice was served upon the petitioner on 9.9.2008. Therefore, the petitioner was also in custody when notice under Section 67 of the Act was served upon him and his statement was recorded. The notice under Section 67 of the Act was therefore served upon the petitioner as a mere fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded under Section 67 of the Act tantamounts to confession made to a police official and therefore cannot be proved against the petitioner for the offence allegedly committed by him. The statement made under Section 67 of the Act was retracted by the petitioner. Therefore, he has prayed that petitioner be released on bail. 14. Section 25 of the Indian Evidence Act has to be read with Section 67 of the Act for considering admissibility of the statement made by the petitioner to the police under Section 67 of the Act. 15. Mr. Satish Aggarwal, learned counsel appearing for the respondent department has argued that petitioner is an NRI and is permanent resident of Canada and was staying at Gurgaon in a rented premises. The investigation is at its initial stage. The petitioner himself admitted in his statement recorded under Section 67 of the Act that he was to take delivery of the contraband from Sanjay near Radison Hotel but, thereafter, he changed the place of delivery and asked Sanjay to meet him at DLF Gold Link and also disclosed that he would be standing and waiting in a lane and when the car reached the place where he was stay, Sanjay got down and ran away and he sat in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se limitations on grant of bail specified in the Section are in addition to the limitations prescribed under the Cr.P.C. Section 37 of the Act reads as follows:- 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 [offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity] 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 likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail.] 20. Thus, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused is not guilty of the alleged offence................ Reference is also made to Union of India vs. Ram Samujh Anr., (1999) (9) SCC 429‟ and Babua Alias Tazmul Hosssain vs. State of Orissa, (2001) 2 SCC 566‟. 22. The above said provisions are mandatory in nature and are required to be adhered to by the Court. Accused who are involved into drug trafficking are responsible for the death of number of innocent young victims who are vulnerable and it causes deleterious effects and deadly impact on the society. These persons, even if released temporarily on bail, there is every possibility and probability that these persons would continue their nefarious activities or trafficking or dealing in narcotics, intoxicants clandestinely, may be because of large stake and illegal profit. 23. At the same time, Section 37 of the Act has to be construed in a pragmatic manner and no such construction can be given to the Section in such a way so as to negate the right of a party to obtain bail, which is otherwise, a valuable right for practical purposes. For considering application for grant of bail, a detailed reasoning may not be necessary to be assigned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity. The provisions of Section 37 of the Act are applicable to this case which are mandatory to be considered by this court while considering this bail application. Public Prosecutor has been given an opportunity to oppose the application for release of the petitioner on bail and has been heard at length. Therefore, first condition contained in Section 37 (1) (b) of the Act is complied with. 28. Now it is to be seen whether, there are reasonable grounds for this court to believe that petitioner is not guilty of an offence under the Act and also that he is not likely to commit any offence while on bail. 29. One of the apprehensions of the respondent- department is that petitioner being NRI and permanent resident of Canada, there is every likelihood that he would abscond, if released on bail. Undisputedly, the passport of the petitioner has already been seized by the intelligence officer. Therefore, under these circumstances, the fear expressed by the learned counsel for the respondent department that petitioner would jump bail, if released being NRI is without any substance. 30. Section 41 of the Act confers powers on a Metropolitan Magistrate or a Magistrate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted, provides in its sub-Section (1) that when officer duly authorized under Section 42 is about to search a person under the provisions of Sections 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Magistrate or Gazetted Officer. Sub-section (2) prescribes that if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or Magistrate referred to in sub-section (1). It, thus follows that a mandate of the said provision is required to be strictly observed by the officer intending to search a suspect of possessing drugs by informing him of his right to be searched in the presence of the Gazetted Officer or a Magistrate. (Narcotic Drugs and Psychotropic Substances in India, (Second Edition), by R.P. Kataria). 34. Bare reading of Section 50 of the Act therefore shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or container or bag or premises or luggage of such person because, luggage does not form part of a person. Wherein the luggage of the accused is a subject matter of search, provisions of Section 50 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as recovered after removing it base fabric of the suitcase and the synmica sheet. Since DRI officers conducted search of vehicle and not personal search of the petitioner and other co-accused person, the plea that notice under Section 50 of the Act was not duly served upon the petitioner is without any substance and is not tenable especially when notice was served upon the petitioner and co-accused persons and they had given their option in writing that they did not want any search to be conducted by a Magistrate or a Gazetted Officer and any of the DRI officers present there could conduct their search. 37. Section 67 of the Act empowers the Investigating Officer to call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder or require any person to produce or deliver any document or thing useful or relevant to the enquiry. He has also the power to examine any person acquainted with the facts and circumstances of the case. 38. The intelligence officer served notice upon the petitioner and other accused persons under Section 67 of the Act and called upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily without any coercion or pressure of any kind is a question to be examined by the court at the trial of the case. There is no other corroborative evidence except statement of co-accused persons recorded under Section 67 of the Act. Therefore, the statement of the petitioner made under Section 67 of the Act is a very weak piece of evidence gathered by the prosecution against the petitioner, especially when it was recorded while petitioner was in custody of the Intelligence officer. 41. As per the information with the DRI officers, narcotic drugs concealed in a suitcase were to be transferred near DLF Golf Course, Gurgaon at around 6.00 P.M. on 8.9.2008. DRI officers along with panch witnesses left the office at 4.45 P.M. for the designated place of delivery of drugs. It was around 6.30 P.M. vehicle UP 14-AK-0505 was spotted on the road side in front of the Golf Course coming from Delhi side. Since the vehicle did not stop at the designated place, it was chased by the DRI officers. The Tata Indica Car allegedly stopped after taking a right turn and another left turn in a lane near an elderly person i.e. the petitioner. The occupants of Tata Indica Car did not notice th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 boys. Those persons got down from the vehicle and they forced the petitioner and the three occupants of the Indica Car to accompany them, on which Surinder Kumar made an inquiry as to why they were quarreling, and one of those boys informed him that they were from CBI and took away the occupants of the India Car as well as the petitioner. This fact is not disputed by the respondent department. It is also not disputed that on receipt of information from the respondent department on 9.9.2008 at about 10.15 P.M. regarding the arrest of the petitioner in a case related to drugs and he had already been produced before the court of ACMM, Patiala House, New Delhi. Inspector Hariom, who was investigating the complaint of abduction of the petitioner, closed further investigation in the said DD. Under these circumstances, even the place of apprehension and arrest of the petitioner is in jeopardy. 43. When Tata Indica Car reached the place where the petitioner was allegedly standing in a lane near Golf Course, Gurgaon, it was already having two occupants besides the driver, namely, Sanjy and Anil Mohan and was already carrying 5 kg. of heroin concealed in a suitcase kept in its dickey. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , where in similar circumstances a telegram was sent by one person to the Home Secretary, Government of Tamil Nadu with copy to Govt. of Tamil Nadu and another to the Commissioner of Police, Chennai and other police officials informing that police party had illegally entered into the house occupied by the appellants and had taken them into custody and their whereabouts were not known and it was feared that their life might be in danger and an immediate action was requested to be taken to safeguard their lives and no such action was taken, the court was pleased to grant bail to the appellants observing that from these facts it appeared that something happened on a particular date i.e. on 9.3.2003 (in the said case) for which a telegram was sent, as to the whereabouts of the appellant were not known. This was relevant factor for granting bail. In this case, as already discussed above, a complaint about abduction of the petitioner was lodged at Police Station Sushant Lok, Gurgaon by the Security Guard/Supervisor of the said apartment where petitioner was residing as a tenant at the time which coincided with the time of the incident in question. 48. Petitioner has placed on record c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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