TMI Blog2021 (9) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ying on the statements of the petitioner and Amitha Radhakrishnan to establish the link between the petitioner and the offence in question - the materials that are placed before the Court are not sufficient to convict the petitioner or to hold him guilty. It is not the contention of the prosecution that the petitioner is having any criminal antecedents. Therefore, it can be held at this stage that he is not likely to commit any offence, if he is enlarged on bail. This Court is conscious of the fact that, it is not the stage either to declare the petitioner as innocent or guilty for the offences as alleged. At the initial stage of considering the bail application filed by the petitioner, prima facie satisfaction about the materials placed on record is to be looked into and on consideration of such materials, in light of the rival contentions, there are reasonable grounds for believing that the petitioner is not guilty of such offences and that he is not likely to commit any offence, while on bail. When these twin conditions as under Section 37(1)(b) of the NDPS Act are satisfied, there are no reason to reject the prayer made by the petitioner. The petitioner is entitled to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablets weighing 90 grams in another pouch were found. The appearance and texture of the substance was that of MDMA. The gross weight of the entire contraband was 159 grams. The samples were drawn and the contraband was seized under the seizure mahazar. 5. Learned counsel submitted that the name of the petitioner is nowhere mentioned in the parcel, nor he gone to the post office to collect the same, nor the parcel was addressed to the petitioner. It is the specific contention of the prosecution that the parcel was addressed to one Amitha Radhakrishnan. But she is not arrayed as accused in the present case. On the basis of the address found on the parcel, the Investigating Officer visited the flat, searched the same, wherein, the petitioner was residing. But no contraband was found in the said flat. The petitioner was subjected to interrogation. His bank details were collected. Similarly, the statement of Amitha Radhakrishnan was also recorded. After completing the investigation, the charge sheet is filed against the present petitioner alone for the above said offences. 6. Learned counsel submitted that the parcel in question was not in the name of the petitioner. No incrimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When the parcel was lying unclaimed, the same was seized under the seizure mahazar, after following the procedures as contemplated under the Act. When the house mentioned in the address was searched, the petitioner was found in occupation of the same. Therefore, his statements were recorded. Only after finding the link between the contraband and the petitioner, he was taken to custody. 9. During investigation, it was found that the petitioner was using VICKR app for placing orders and getting the consignment. This app is specially designed to carry on the dealings in contraband and such other substance as it will provide anonymity of both consigner and the consignee and the details of the transactions. The app is so designed that the messages will get deleted once the message is read. The petitioner revealed the information that he used to consign the contraband for the purpose of distributing the same to the students in Jain, CMS and other colleges. The money that were collected from sale of contraband is credited to his account and also to the account of his girlfriend i.e., Amitha Radhakrishnan. Small doses of contraband were being sold to the students for their consumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be complied with, if the accused is to be enlarged on bail. The statement of objects and reasons for introducing the bill for amendment of NDPS Act and the subsequent amendment, is to be borne in mind, while considering the bail applications filed by the accused for the offences punishable under Sections 19, 24, 27-A and for the offences involving commercial quantity of the contraband. Learned counsel submits that since commercial quantity of MDMA was recovered in the present case and strong prima facie materials are placed before the Court to prove the involvement of the petitioner, he is not entitled for grant of bail. Hence, he prays for dismissal of the petition. 12. In reply, the learned counsel for the petitioner submitted that no materials are placed before the Court to show that the petitioner had discarded his old phone and purchased the new one. Even though the bank statements were produced, there is nothing abnormal in the transactions and there is nothing to suggest that the petitioner was dealing with BIT coin. If at all the petitioner was transacting with VICKR app, the same could have been retrieved by the Investigating Officer. Not even a single student either f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a parcel lying in the foreign post office, Chamrajpet, Bengaluru, suspected to have containing MDMA and when the parcel was opened, it contained in all 159 grams of MDMA, which is a commercial quantity. Samples were drawn and the bulk contraband was seized. It is stated that when the address of the consignee as mentioned in the parcel was verified, it was found that the petitioner was in occupation of the said premises. A search was held in the said premises. The statement of the petitioner was recorded under Section 67 of the NDPS Act. It is also found that the consignee Amitha Radhakrishnan was also residing in the said premises along with the petitioner and her statement was also recorded. On the basis of the statements of the petitioner and Amitha Radhakrishnan, their bank details were verified, wherein, it is found that the petitioner is dealing with not only his bank accounts, but also the bank accounts of Amitha Radhakrishnan, for depositing the proceeds earned from the sale of narcotic drugs. As per the letter of Deputy Commissioner of City Customs, PAD, Bengaluru, similar parcel was found unclaimed in the foreign post office addressed to Amitha Radhakrishnan and it was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the petitioner used to book the consignment through VICKR app from foreign countries and used to pay the consideration through BIT coin, the same is on the basis of the statements of the petitioner and Amitha Radhakrishnan, under Section 67 of the NDPS Act. Even though, it is contended that the petitioner has thrown his mobile phone in sewage and using a new handset, the same is only probabalised by producing IMEI details to show the change in the said numbers. But, admittedly, no other materials are available as of now to substantiate the same. 17. In Ankush Kumar @ Sonu (supra), the High Court of Punjab and Haryana, considered the requirement of Section 37(1)(b) of NDPS Act, and under the facts and circumstance of the case, felt it proper to enlarge the accused on bail, after recording its prima facie satisfaction that the petitioner is not involved in the case and that he was also implicated in a false case earlier. It was also opined that there is no likelihood of the accused committing the offence while on bail and accordingly, the accused was enlarged on bail. However, the Court categorically stated that it is not considering the constitutional validity of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable. It reads thus: 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 a term of imprisonment of five years or more under this Act 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 6. The aforesaid Section is incorporated to achieve the object as mentioned in the Statements of Objects and Reasons for introducing the Bill No.125/ 1988 thus: Even though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended. 21. In State of Kerala (supra), the Hon ble Apex Court once again considered the requirements of Section 37(1)(b) of the NDPS Act, while dealing with bail application filed by the accused and referred to its earlier decision in Ram Samujh (supra) and held that satisfaction of twin requirements under Section 37(1)(b) is sine-qua- non for grant of bail. It is appropriate to extract paras 19 and 20 of the said judgment, which reads 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 of the Cr.P.C, but is also subject to the limitation placed by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and Amitha Radhakrishnan were residing together in the address mentioned in the parcel, its contention that (i) the bank challans in question evidence the fact for having deposited the amount by the petitioner in the account of Amitha Radhakrishnan or (ii) the petitioner was maintaining the said accounts for the purpose of depositing the proceeds of sale of the contraband or (iii) the petitioner had discarded his earlier mobile phone with an intention to cause disappearance of the evidence or (iv) the petitioner is in the habit of booking the consignment containing the contraband from foreign countries through VICKR app and used to pay the price by BIT coin, are to be substantiated by the prosecution either by additional documents or by examining the charge sheet witnesses. But as of now, the materials that are placed before the Court are not sufficient to convict the petitioner or to hold him guilty. It is not the contention of the prosecution that the petitioner is having any criminal antecedents. Therefore, it can be held at this stage that he is not likely to commit any offence, if he is enlarged on bail. 25. This Court is conscious of the fact that, it is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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