TMI Blog2021 (6) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... s the possibility of the petitioner indulging in the same activity again if he is released on bail. The discrepancy in the seal movement register and its effect would be considered/analysed at the stage of trial and that discrepancy alone is not sufficient for this Court to come to the conclusion that the entire case of the prosecution is false at this stage. This Court is, therefore, not inclined to grant bail to the petitioner herein - bail application is dismissed. - BAIL APPLN. 1207/2021 - - - Dated:- 25-6-2021 - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD Petitioner: Mr. C. Mohan Rao, Sr. Advocate with Mr. Anuj Kumar Ranjan and Mr. Lokesh Kumar Sharma, Advocates Respondent: Mr. Subhash Bansal, Sr. Standing Counsel for NCB with Mr. Shashwat Bansal, Advocate ORDER SUBRAMONIUM PRASAD, J. 1. This petition under Section 439 Cr.P.C is for grant of bail to the petitioner in Case No. VIII/32/DZU/2019 registered at Narcotics Control Bureau, R.K. Puram, Delhi for offences under Sections 8(A)/21(C)/23(C)/29 of the NDPS Act. 2. The facts, in brief, leading to the filing of the instant petition are as under: a) It is the case of the prosecution that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can identify the house of the petitioner herein. The petitioner was apprehended from his house at 137, F-Block, 3rd Floor, Lajpat Nagar-I, New Delhi. Search was conducted at his house. In the search, a mobile phone and some other articles were recovered. Notice under section 67 NDPS Act was issued to the petitioner herein. In his voluntary statement the petitioner herein revealed that the capsules were to be supplied to one Chinonso Stanly Alex who is living with one Goddy and 2-3 other Nigerians at House No. A-27, 1st Floor, Anand Vihar, Near Metro Pillar-595, New Delhi. Hikmatullah Hikmati also tendered his voluntary Statement in Pashto language confirming that the heroin was to be supplied to one Stanley Alex and some Nigerians. d) The NCB Team reached House No. A-27, 1st Floor, Anand Vihar, and at the said premises Godday Nemonye along with other Nigerians were present. During search of the premises 3.4 Kgs. Heroin was recovered. e) Hikmatullah Hikmati and the petitioner herein were arrested on 23.08.2019. f) On 19.12.2019, Chinonso Stanley Okorie@ Chinonso Iwuozo, Brght Right @ Obina Oguchukwu, Collins Nnebolinsa Chiwetalu @ Chidi Nwankwu and Alex Edet Nelson@ Ifean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aharashtra v. Vishwanaih Marana Shcity, (2012) 10 SCC 561. g) Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra Anr., (2005) 5 SCC 294. 5. The learned Senior Counsel further states that that as per the version of the prosecution the search and seizure at the residence o the petitioner was conducted on 22.08.2019, however, as per the Seal Movement Register of the NCB, seal was given to the IO Rampal Singh on 21.08.2019 at 13:15 Hours and it was returned on 21.08.2019 at 17:00 Hours and the entry has been signed by both the IO and the issuing officer. He further states that as per the NCB movement register the operation was done on 21.08.2019 and not on 22.08.2019. He states that the entire case of the prosecution regarding search and seizure conducted at the house of the petitioner on 22.08.2019 by the IO cannot be accepted and the petitioner is entitled to acquittal on this very ground. He further states that the petitioner is in custody since 23.08.2019, the investigation is complete and trial is yet to begin. He also states that the petitioner is not in good health and he has already filed an application for interim bail on health grounds. He therefore states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleted data and data stored in mobile extract from mobile and found that the mirror image photograph related to Drug/heroin capsules, chatting with Allah Noor, Photograph of accused Noorzai Gul Amin Air tickets print of accused Noorzai Gul Amin dated 17.08.2019. Photographs of Air Ticket of Nimatullah Mangal dated 21.08.2019, Air tickets of different person suspected top came to India swallowed the Heroin capsules, connection with Drug Trafficker found in the mobile photographs of the accused Alla Noor. (emphasis supplied) The learned Senior Standing Counsel for the NCB states that in his voluntary disclosure statement the petitioner disclosed that Nimatullah Mangal had called him up nine days back and told him that his uncle one Abdul, who is doing drug business, is sending one person with Heroin capsules by Ariana Airlines on 17.08.2019 and further told him that he will come to Delhi on 21.08.2019 to collect money $6,000/- which is pending from the last delivery which has been supplied to one Stanley Alex and Himatullah Hikmate. The learned Senior Standing Counsel, contends that apart from disclosure statements there are various recoveries made at the instance of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. As observed by this Court in Union of India v. Thamisharasi [(1995) 4 SCC 190 : 1995 SCC (Cri) 665 : JT (1995) 4 SC 253] clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. (emphasis supplied) 10. In State of Kerala Ors. v. Rajesh Ors. reported as (2020) 12 SCC 122, the Supreme Court has observed as under :- 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC, but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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