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TMI Blog2022 (6) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... t DHL Express Pvt. India Ltd. 40 Okhla Estate, New Delhi, was suspected to contain narcotic substances. The information revealed that the parcel had been booked from ANS Express Services Pvt. Ltd. 413 Sant Nagar, East of Kailash, New Delhi under AWB No. 5546780993, with Liberia (Africa) as the destination. B. An NCB team reached the DHL office at 2:30 PM on 26.05.2014. In the presence of two independent witnesses, the parcel bearing AWB No. 5546780993 was opened, and contained ladies' clothes and accessories, including a packet of 12 "thread piece rolls". One of the thread piece rolls was found to have a cavity, which contained an off white coloured powder in a roll. A small quantity of the powder was tested with the help of field-testing kit, and gave positive result for heroin. The remaining 11 thread piece rolls were thereafter opened, and contained similar cavities with off white coloured powder. The off white coloured powder from each of the 11 thread piece rolls was tested with the field-testing kit, and it also gave positive result for heroin. C. The powder from the 12 cavities, having the same colour, texture and properties, was thereafter mixed, and was transferred into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th notices under Section 50 of the Act, but declined to be searched before a Gazetted Officer or a Magistrate. On their personal search, nothing incriminating was recovered from the two individuals. I. On searching the house, an "Orange coloured lehenga" was found on a table in the first room of the house. Some substance was found to be concealed/stitched inside the layers of the gotta of the lehenga. It was cut open, and found to contain a tube-shaped transparent polythene, which contained off white coloured powder. The powder was tested with DD kit, and gave positive result for heroin. Upon cutting all the layers of gotta, 70 such tubes were found, each of which contained similar off white coloured powder. J. A small quantity of the powder was taken from each of the tubes, and was subsequently tested with the DD kit. Each of the samples gave positive results for heroin. K. The powder from all the tubes, having the same colour, texture and properties, was thereafter mixed, and transferred into a transparent packet, which was found to weigh 265 grams. L. Two samples of 5 grams each were drawn, and put in polythene pouches, which in turn were kept in white envelopes. They were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the alleged contraband by the CRCL, the substance recovered from the parcel was found positive for heroin, as was one of the samples from the residence of the applicant. The other sample which was recovered from the house of the applicant was found positive for charas. 3. As evident from the above, the applicant has been accused of conscious possession of at least 265 grams of heroin (which constitutes a commercial quantity), and 175 grams of charas (which constitutes an intermediate quantity). Although the prosecution also attributes to him the 200 grams of heroin recovered from the parcel (which constitutes an intermediate quantity), the accused disputes the said possession. In view of the fact that, at the minimum, the case against the applicant involves conscious possession of 265 grams of heroin, which is a commercial quantity of narcotics under the Act, there is no dispute that the rigors of Section 37 of the Act are attracted to the present case. 4. The applicant has been in custody in connection with the case since 03.06.2014, and remains in custody for a period of eight years. 5. The applicant first approached the Special Court for bail, which was rejected on 11.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of Revenue Intelligence5 and in Anil Kumar alias Nillu vs. State6 Relying upon the aforesaid judgments, Mr. Priyadarshi submitted that the applicant, who has been in custody for eight years, is entitled to be enlarged on bail on the strength of the SCLAC judgment. B. Mr. Priyadarshi relied upon an order of the Supreme Court in Baba Fakruddin Sheikh @ Fakru vs. The State (NCT of Delhi)7, wherein the applicant therein was denied bail by an order of this Court dated 25.03.2021 in Bail Application No. 334/2021, on the finding that a commercial quantity of contraband had been recovered, and Section 37 of the Act would be attracted. The Supreme Court, however, directed the accused to be enlarged on bail, noting in its order that the petitioner had suffered incarceration for a period of seven years and six months, and that there was no possibility of the trial being concluded in the near future. C. Mr. Priyadarshi submitted on merits that, even taking into account the provisions of Section 37 of the Act, the applicant is entitled to be released on bail. He emphasized that, in view of the judgment of the Supreme Court in Tofan Singh vs. State of Tamil Nadu8 , the statements of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol Bureau14 to submit that, in a similar case under the Act, this Court had declined to release the applicant on bail, despite incarceration for a period of over six years. He pointed out that the Court considered the judgment in Amani Fidel Chris15, but declined to consider this argument at the stage of bail, particularly because only one prosecution witness remained to be examined. A similar contention was also considered in Anthony Umeh vs. State16, Naveed Ummer Sheikh vs. Narcotic Control Bureau Through: Shri Mukesh Malik Prosecutor NCB17 and Bipin Bihari Lenka vs. Narcotic Control Bureau18. E. Mr. Bansal relied upon the judgments of this Court in Mohd Hanif vs. NCB19, Emeka Charles Omuka vs. Narcotic Control Bureau20 and Edwin Emeka Igbowke vs. Narcotics Control Bureau21 to submit that this Court has refused to grant bail to accused alleged to have committed offences under the Act wherein the contraband seized was in commercial quantity, and that the rigors of Section 37 of the Act will be attracted. 12. In rejoinder, Mr. Priyadarshi submitted that the applicant's citizenship status ought not to detain this Court as the Act makes no distinction between accused on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard. The petition before the Supreme Court was motivated by the delay in disposal of cases under the Act, particularly involving foreigners. During the proceedings, the scope was expanded to cover all undertrial prisoners who were in jail for offences under the Act for a period of over two years. The Court noted that, despite the provision for trial before Special Courts under the Act, the disposal of cases has taken much longer than originally envisioned. The Supreme Court found that the delay in trial, when read with the stringent provisions of Section 37 of the Act, render the fundamental rights of the accused under Articles 14, 19 and 21 of the Constitution in jeopardy. Although the Court declined to quash the charges against the accused on this basis, it accepted the alternative submission that the accused should be released on bail after a certain period of incarceration, if the trial has been delayed beyond a reasonable time. The Court categorized the cases according to the punishment prescribed for the offence in question. In the case of persons accused of offences punishable with minimum imprisonment of ten years and a minimum fine of Rs.1 lakh, the Court direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he permission of the learned Special Judge; (vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount; (vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and (viii) after the release of the undertrial accused pursuant to this order, the cases of those undertrials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in Section 309 of the Code. 16. We may state that the above are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Court's a power to grant bail under Section 37 of the Act. The Special Court will be free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the accused is found to be misusing it and grounds for cancellation of bail exist. Lastly, we grant liberty to apply in case of any dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present time. 19. Although the SCLAC judgment has not specifically been applied to the National Capital Territory of Delhi, the following recent decisions of coordinate benches of this Court have applied the principles laid down therein by the Supreme Court:- a. In Atul Aggarwal27, the Court was considering an application for bail in a case arising under the Act. The accused had been in custody for nine years as an undertrial prisoner. The Court cited the SCLAC judgment to release him on bail. b. In Kartik Dangi vs. State of NCT of Delhi28, the Court inter alia noticed the decisions of the Supreme Court in SCLAC, Union of India vs. K.A. Najeeb29, Manoj Kumar Singh30 and Tapan Das31, and the judgment of the Division Bench of the Calcutta High Court in Sanawar Ali32. The Court released the applicant on bail despite the allegation of seizure of 12.6 kilograms of opium attracting the limitations prescribed in Section 37 of the Act. c. In Anil Kumar @ Nillu33, a similar conclusion was recorded, noticing the SCLAC judgment and the judgment of the Calcutta High Court in Sanawar Ali34. The argument of the prosecution that the SCLAC judgment was a one-time measure, was rejected wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohd. Hanif 46, this Court rejected the bail application of the accused, who had been in custody for about 4 years 9 months on the ground that a previous application for bail had already been rejected by this Court. The case of Emeka Charles Omuka47 is also not a case of incarceration for the period as laid down in the SCLAC judgment, as the applicant was in judicial custody since 27.12.2019, and the judgment was pronounced on 19.04.2022. In Edwin Emeka Igbowke48 also, the period of incarceration was of just over four years. In any event, as none of the judgments cited by Mr. Bansal deal with the SCLAC judgment, I am of the view that the recent judgments of coordinate benches of this Court, particularly in Anil Kumar @ Nillu49, and Ebera Nwanaforo50, squarely cover the present case. 21. The judgment in Achint Navinbhai Patel51, cited by Mr. Bansal, proceeds on the basis that the petitioners therein were themselves responsible, at least partially, for the delay in completion of the trial. Although the trial had been pending for eight years, the reasons noted by the Supreme Court52 included the actions of the accused by filing repeated petitions on interim matters, including bail a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi. I was informed during the course of hearing that his address in Delhi has also been verified by the IO. The applicant can, therefore, be seen to have roots in the society, despite his citizenship status. 24. For the reasons aforesaid, as the applicant has been in custody for eight years already, six PWs are yet to be examined, and on the consideration of the various factors noted above, including the provision of Section 37 of the Act, as interpreted in the above judgments of the Supreme Court and this Court, I am of the view that the applicant is entitled to be released on bail. Conclusion 25. It is, therefore, directed that the applicant herein be admitted to bail in relation to Sessions Case No. 9080/2016, registered by the NCB under Sections 8(c), 20, 21, 22 and 23 of the Act, subject to the following conditions:- A. The applicant will furnish a personal bond in the sum of Rs.1 lakh, with two sureties in the like amount, to the satisfaction of the Special Court/Duty Magistrate. B. The applicant's passport will be deposited with the Special Court. C. The applicant will present himself at the office of the NCB every Monday at 11:00 am, and will be released with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. 9314/2020, decided 27.11.2020 5 Judgment dated 21.12.2021 in BAIL APPL. 2477/2021 6 Judgment dated 21.03.2022 in BAIL APPL.1724/2021 7 Order dated 16.02.2022, in SLP (Crl) No. 13/2022 8 (2021) 4 SCC 1 9 Crl Appeal 1027/2015, decided on 13.03.2020 10 Crl Appeal 755/2016, decided on 13.08.2018 11 Crl Appeal 220/2016, decided on 22.02.2021 12 (1995) 4 SCC 695 13 (2002) 10 SCC 529. 14 BAIL APPL. 812/2021, decided on 19.04.2021 15 Supra (Note 9) 16 BAIL APPL. 851/2021, decided on 06.07.2021 17 BAIL APPL. 3248/2021, decided on 23.11.2021 18 BAIL APPL. 3291/2021, decided on 25.04.2022 19 BAIL APPL. 1339/2021, decided on 12.04.2022 20 BAIL APPL. 3289/2020, decided on 19.04.2022 21 BAIL APPL. 85/2021, decided on 15.03.2021 22 Supra (Note 3) 23 SLP (Crl) 4711-4712/2020, decided on 06.10.2021 24 SLP (Crl) 5617/2021, decided on 07.10.2021 25 Supra (Note 7) 26 Supra (Note 4) 27 Supra (Note 5) 28 BAIL APPL. No. 2872/2021, decided on 16.12.2021 29 (2021) 3 SCC 713 30 Supra (Note 23) 31 Supra (Note 24) 32 Supra (Note 4) 33 Supra (Note 6) 34 Supra (Note 4) 35 Supra (Note 5) 36 Supra (Note 6) 37 Judgment dated 31.05.2022 in BAIL APPL. 3705/2020 and BAIL APPL. 4187 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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