2009 (7) TMI 1278 - HC - Customs

Summary

Issues Involved:
1. Regular bail application u/s 21, 23, and 29 of the NDPS Act.
2. Non-recovery of contraband from the petitioner.
3. Voluntariness and retraction of the petitioner's statement.
4. Applicability of Section 37 of the NDPS Act.

Summary:

Issue 1: Regular Bail Application u/s 21, 23, and 29 of the NDPS Act

The petitioner sought regular bail for offences u/s 21, 23, and 29 of the NDPS Act, arguing that no recovery was effected from him. The learned senior counsel for the petitioner highlighted that 6 kilograms, 200 grams of heroin were recovered from the exclusive possession of accused No.1 (Danon Armand Erick @ Peter), and the petitioner was not named as an associate or accomplice in the commission of the offence.

Issue 2: Non-recovery of Contraband from the Petitioner

The complaint detailed the recovery of heroin from accused No.1, who was apprehended by DRI officers based on specific intelligence. The heroin was concealed in metal gears within polythene bags. The statements of accused No.1 did not implicate the petitioner in the supply, possession, or transportation of heroin. The petitioner, who ran a courier service, admitted to booking consignments for accused No.1 but retracted his statement on 5.2.2009.

Issue 3: Voluntariness and Retraction of the Petitioner's Statement

The petitioner argued that his statement made on 25.9.2008 was not voluntary and was retracted on 5.2.2009. The learned counsel for the respondent opposed the bail application, citing the petitioner's admission of awareness about the concealed drugs and the extra payment charged for generating commercial invoices. The trial court had declined bail, noting the petitioner's involvement in dispatching the contraband.

Issue 4: Applicability of Section 37 of the NDPS Act

Section 37 of the NDPS Act imposes stringent conditions for granting bail, requiring the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. The court referred to the Supreme Court's interpretation in Union of India Vs. Shiv Shanker Kesari, emphasizing that "reasonable grounds" mean substantial probable causes for believing the accused is not guilty.

The court found that the petitioner had no past record of dealing with drugs, and there was no evidence suggesting he would commit any offence if granted bail. The petitioner's role was limited to dispatching the consignment, and no contraband was seized from his possession. The prime accused did not implicate the petitioner in his statements. The court concluded that the parameters of Section 37 of the NDPS Act were met and granted bail to the petitioner, subject to conditions including furnishing a personal bond, surrendering his passport, and not leaving the country without court permission.

Conclusion: The application for bail was granted, and the petitioner was released on bail with specific conditions to ensure compliance with the legal requirements and prevent tampering with evidence or influencing witnesses.