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HARISH JOSHI Versus D.R.I.

2009 (1) TMI 908 - DELHI HIGH COURT

BAIL APPL. NO. 2449/2008 - Dated:- 16-1-2009 - HON'BLE MS. JUSTICE ARUNA SURESH For the Petitioner : Mr. Dinesh Mathur, Sr. Adv. with Mr. Vikas Gupta, Adv. For the Respondent : : Mr. Satish Aggarwal, Adv. IO Alkesh Rao, Asstt. Director Nilank Kumar, DRI . JUDGMENT ARUNA SURESH, J. 1. On receipt of specific intelligence by the officers of Directorate of Revenue Intelligence (hereinafter referred as DRI‟) that one person would come in a Tata Indica Car bearing Registration No. UP 14-AK- .....

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bout 500 meters took a left turn and entered into a lane. The said vehicle stopped near the 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 .....

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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 heroin concealed therein lying in the dickey of the car. The person who was successful in running away was identified as Sanjay. 3. A notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 .....

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searched; the suitcase was taken out from dickey of the car along with other documents pertaining to the vehicle. On opening the suitcase and its careful examination in the presence of the petitioner and other accused persons revealed that the said suitcase contained old and used clothes and on removing base fabric of the suitcase a sunmica sheet was found affixed and after removing the said sheet, five packets wrapped with transparent tape were found placed on another sunmica sheet attached to .....

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persons including the petitioner under Section 67 of the Act. 5. Petitioner has filed this petition under Section 37 of the NDPS Act read with Section 439 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.‟) seeking his release on bail. The bail application is vehemently opposed by the respondent department. 6. Mr. Dinesh Mathur, senior counsel appearing for the petitioner has argued that the Investigating Agency has not complied with the mandatory provisions of Section 50 of .....

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hat 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 wa .....

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d. It is submitted that statement of the petitioner recorded under Section 67 of the Act while in custody is in complete contravention of law. 9. It is further submitted by learned counsel for the petitioner that as per the panchnama, DRI officers had left the office along with witnesses at 4.45 P.M. on 8.9.2008 for the spot and they stopped the Indica Car at about 6.30 P.M. The vehicle was finally intercepted at about 7.50 P.M.; whereas Petitioner was actually abducted from the compound inside .....

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out 7.50 P.M. by the DRI officers, clearly indicate that petitioner was lifted from his house and was falsely implicated in this case. 11. It is further argued that Indica Car was allegedly intercepted and stopped across Shiv Murti and from the place where the petitioner got into the car to reach to Shiv Murti, the vehicle had to first come on the M.G. road and from there it had to cross Toll Plaza. Indica Car could not have crossed Toll Plaza without paying the toll tax. Surprisingly, the DRI o .....

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h under normal circumstances, should have been taken. The alleged two witnesses to the panchnama had accompanied the DRI officers from their office itself and are not independent witnesses. 13. It is further argued that statement of the petitioner recorded 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 t .....

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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 the car. Therefore, as per his confessional statement, t .....

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cial quantity and therefore provisions of Section 37 of the Act are applicable to the facts and circumstances of this case, which, restricts the power of the court to release the petitioner on bail. 17. It is submitted that petitioner had made a statement under Section 67 of the Act voluntarily, without fear, pressure or threat and was written by him in his own hand-writing and that the alleged retraction by the petitioner was nothing but an afterthought and based on legal advice. It is urged th .....

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ction of the court to grant bail for an offence under NDPS Act is circumscribed by the provisions contained in Section 37 of the Act. This Section starts with non obstante clause and has an overriding effect over the provisions regulating bail contained in Cr.P.C. This section makes offence cognizable and non bailable. A person accused of offence punishable under Section 19 or Section 24 or 27-A and also for offence involving commercial quantity is not entitled to be released on bail unless the .....

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7. 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 applicatio .....

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; 20. Thus, the two limitations for grant of bail provided under Section 37 of the Act are (i) an opportunity to the Public Prosecutor to oppose bail application and (ii) the satisfaction of the court that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on grant of bail come only when the question of granting bail arises on merits. The second condition is twofold, firstly, the cou .....

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ble causes for believing that the accused is not guilty of the alleged offence. In other words, the provision requires existence of such facts and circumstances as are sufficient in themselves for justified satisfaction of the court that the accused is not guilty of the alleged offence. Reference is made to N.R. Mon vs. Md. Nasimuddin, 2008 (3) JCC (Narcotics) 170‟, in the said case it was observed:- 7. The limitations on granting of bail come in only when the question of granting bail ari .....

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guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence................" Reference is .....

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arily 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 purpose .....

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p to satisfy the court that there are reasonable grounds for believing that he is not guilty of such offence, provided, the necessary material was available on record for the court to conclude that the satisfaction as required under the Section was met. The Court is not to give a finding that accused is not guilty, or guilty, which is to be recorded after the conclusion of the trial, whereas the satisfaction as required under the Section has to be arrived at by the court before the conclusion of .....

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any other alternative other than recording its necessary satisfaction. The court has also to express its satisfaction that accused is not likely to commit any offence while on bail. For that purpose criminal antecedents of the accused can also be considered by the court. Reference is made to (Satyendra Sah vs. State of Bihar, 1996 (1) Crimes 267 (H.C.) Patna High Court)‟. 26. Keeping in mind the provisions of Section 37 of the Act as analysed above, for grant of bail for an offence under t .....

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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 petiti .....

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ent 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 the first class or any Magistrate of the second class so empowered by the State Government to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act. He can also issue warrants for the search, whether by day or by night, of any building, c .....

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nal knowledge or information given by any person, may authorise any officer subordinate to him, but superior in rank to a peon, sepoy or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. Such authorized an officer has all the powers of an officer acting under Section 42 of the Act. 31. Section 42 of the Act empowers such an officer to enter into, search, seize and ar .....

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ovisions of Section 50 of the Act are mandatory in nature and therefore, breach of the condition vitiates the trial, as non compliance would result non relevance of search and consequent seizure of goods. After a person is arrested and before a search is conducted, it is mandatory to inform the accused that he has a right to be searched in presence of a Gazetted officer or a Magistrate. Accused is entitled to benefit of acquittal if there is failure to comply with the provisions. 33. Section 50 .....

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e 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 o .....

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e of H.P. , (2003) 7 SCC 465‟, a car was intercepted by the raiding party who had prior information that the said car carried charas and the driver of the said car and other accused persons were found sitting and an option was given to the accused persons as to whether they wanted to be searched by a Magistrate or by him and appellant consented to the search by Jainarain and on personal search nothing incriminating was found on their person. However, on search of the car, a bag was found t .....

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rl.LJ, 1356‟, and Rajendra v. State of Madhya Pradesh, 2004 (13) AIC 35 (SC)‟, and Gurbax Singh v. State of Haryana, 2001 (3) SCC 28‟. 36. In the present case, as per panchnama, DRI officers served notice under Section 50 of the Act to the petitioner and other accused persons in the presence of the witnesses, Shri Raj Kumar and Shri Omvir and the petitioner and other accused persons expressed their option in writing on the said notice that they did not require presence of a Mag .....

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h of the suitcase in their office at CGO Complex, New Delhi. The said suitcase was found to contain some old clothes and it was from the bottom of the suitcase heroin was 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 .....

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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 them to appear before him on 9.9.2008 at 3.15 P.M. in his office. This notice is dated 9.9.2008 and was stated to have been served upon the .....

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which is in complete violation of law. The said statement was specifically retreated by the petitioner. Learned counsel for the respondent-department has submitted that the retraction was not valid as when the petitioner was produced before the Magistrate for remand, he never made any such statement to the Magistrate retracting his statement under Section 67 of the Act. 39. Confessional statement though retracted at the subsequent stage can be used against the person making it if the court is sa .....

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t in the present case is not made to a police officer, but to a person who was acting under special statute. Statement of the petitioner, recorded by the DRI officer while he was in custody prima facie cannot be considered voluntary. In cases under the NDPS Act, prosecution is entitled to rely upon the statement of the accused recorded during investigation. However, what generally is done by the Investigating Officer in such cases is to procure statement may be by assault, illegal detention and .....

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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. fo .....

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ficers stopped their car at some distance. One of the occupants Sanjay allegedly got down from the vehicle and talked to the petitioner. When officers of the DRI tried to intercept and apprehend the said car, accused Sanjay who got down from the car managed to run away in a nearby lane. Whereas knowing it well that they were being chased, petitioner chose to sit in the Tata Indica Car and the vehicle took a U turn and sped away towards Delhi at a high speed. Why could not the DRI officers immedi .....

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chase the vehicle till they reached within the territorial jurisdiction of Delhi i.e. opposite Shiv Murti, near Mahipal Pur, New Delhi. There they did check the inside and dickey of the car. Petitioner on questioning allegedly admitted that the suitcase present in the dickey contained heroin, but no further proceedings were conducted there. Petitioner and other occupants of the car along with Tata Indica Car were brought to the CGO complex where search of the suitcase and other proceedings were .....

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usive Main Gate and at about 7.00 P.M. Harish Joshi, resident of the apartment was roaming near the Pawan Dhari, when one Indica Car having registration No.UP-14 AK-505 came there which was occupied by two other persons besides the driver. This vehicle was followed by one Qualis Car bearing No. DL-2C-AC-8252 of white colour which was occupied by 7/8 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 S .....

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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 heroi .....

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s or address is not known. This submission is belied from the statement of co- accused Anil Mohan recorded under Section 67 of the Act. In the said statement Anil Mohan disclosed that he knew Sanjay very closely as he had met him in March, 2007 in Dasna Jail, Ghaziabad, U.P. as he was locked up for one month and Sanjay was undergoing sentence in a robbery case. He had again met Sanjay in the court of Collector, Raj Nagar, Ghaziabad, U.P. Lastly Sanjay had talked to him on telephone on 9.9.2008. .....

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ation Sushant Lok almost simultaneously indicating that at the relevant time when the alleged incident took place, petitioner was present in the complex of DLF Exclusive Apartment, Gurgaon. 46. Tata Indica car was allegedly spotted at about 6.30 P.M., vehicle was intercepted opposite Shiv Murti at about 7.30 P.M. i.e. within one hour of the surveillance mounted by DRI officers. The timings of the incident and the episode of alleged abduction are contemporary. There is no mis- match in the timing .....

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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 .....

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s residing as a tenant at the time which coincided with the time of the incident in question. 48. Petitioner has placed on record copies of certain media reports appearing in different papers of 9 th September and 10th September respectively. Learned counsel for the petitioner has also referred to some talks which took place between Commissioner of Police Gurgaon who had also reached the spot for purposes of investigation and various TV channel reports which were immediately reported from the sp .....

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