9911796707
TMI Blog2021 (6) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... officer. Accordingly, a team was formed to take necessary action. At the IGI Airport the said person was identified and intercepted. On enquiry Noorzai Gul Amin accepted that he had swallowed drug capsules. He was taken to Safdurjung Hospital, where the Doctor on duty confirmed about the presence of foreign body in the stomach of Noorzai Gul Amin. It is stated that the said Noorzai Gul Amin expelled 119 capsules through passage of stool on 20.08.2019. It is stated that the capsules were counted in the presence of independent witnesses, interpreter, Doctor on duty and the team of the NCB. The Doctor on duty tested each capsule and upon testing it was found that the capsules contained heroin. On weighing all the 119 capsules, it was found that Noorzai Gul Amir was carrying 770 Grams of heroin. b) Notice under section 67 of NDPS Act was issued to Noorzai Gul Amin who gave voluntary statement in his native language Pashto which was translated by the Interpreter. In his voluntary statement Noorzai Gul Amin revealed that one person namely Naimatullah Mangal offered him Rs. 50,000/- for carrying the drug capsules in his stomach and gave him 119 capsules of Heroin, which he swallowed. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the entire operation 770 grams of Heroin was recovered on 20.08.2019 from Noorzai Gul Amin, 3.4 Kgs. of Heroin was recovered on 22.08.2019 from House No. A-27, 1st Floor, Anand Vihar and 220 grams of Cocaine was recovered on 19.12.2019 from House No. 1238, Islampur Village, Sector-38, Gurugram. h) The petitioner herein filed an application for interim bail being Bail Application No.4247/2020, on the ground that he has to undergo urgent surgery. Notice has been issued in the said application and it was posted for hearing on 13.04.2021. The petitioner is in custody since 23.08.2019 and has filed the instant bail application for seeking regular bail. 3. Heard Mr. C. Mohan Rao, learned Senior Advocate appearing for the petitioner and Mr. Subhash Bansal, learned Senior Standing Counsel appearing for the NCB and perused the material on record. 4. Mr. C. Mohan Rao, learned Senior counsel appearing for the petitioner states that the petitioner is in judicial custody since 23.08.2019. He states that other than the disclosure statements, given by the petitioner under Section 67 of the NDPS Act, there is no material against the petitioner. He states that the statement given by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 from Noorzai Gul Amin and 3.4 Kgs. of Heroin was recovered on 22.08.2019 from House No. A-27, 1st Floor, Anand Vihar on the basis of the disclosure statement of the petitioner and 220 grams of Cocaine was recovered on 19.12.2019 from House No. 1238, Islampur Village, Sector-38, Gurugram. The learned Senior Standing Counsel further states that the mobile phone of the petitioner herein and the SIM card having number 7290901992 was recovered from the petitioner. He states that from the phone of the petitioner, a mirror image of the phone was extracted from which photographs of Heroin, capsules, and photographs of heroin weight, image of passports, image of Currency, chats between Naimitullah Mangal and the petitioner herein and their photograph were found. It is also stated that in the phone of the petitioner Whatsapp Calls between the petitioner and Naimatullah Mangal in Chat window from 02.07.2019 to 17.08.2019 were also found. The learned Senior Standing Counsel for NCB places reliance on para 113 and 114 of the complaint which reads as under: "113. That in response of request Sh. Anand Kumar, IO for providing the mobile mirror image, Director, SIFS provide the Mirror image of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the discrepancy in the seal movement register is not relevant at this juncture and would be considered at the stage of trial. 7. The quantity of heroin and cocaine recovered in the instant case is commercial quantity. It is well settled that the jurisdiction of a Court to grant bail for offences under NDPS Act in cases of recovery of commercial quantity is circumscribed by the provision of Section 37 of the NDPS Act. 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 [offences under section 19 or section 24 or section 27A 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 like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Union of India v. Rattan Mallik reported as (2009) 2 SCC 624, the Supreme Court has observed as under : "12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". 13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." 11. Applying the law laid down by the Supreme Court to the present case, the material on record, at this juncture, shows the involvement of the petitioner as a part of the drug syndicate. Heroin was concealed in capsules ingested by persons. It shows that the operation was extremely well planned. A total of 770 grams of Heroin was recovered on 20.08.2019 from Noorzai Gul Amin, 220 grams of Cocaine was recovered on 19.12.2019 from House No. 1238, Islampur Village, Sector-38, Gurugram and 3.4 Kgs. of Heroin was recovered on 22.08.2019 from House No. A-27, 1st Floor, Anand ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
