2009 (1) TMI 908 - HC - Indian Laws

Summary

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Validity of the statement recorded under Section 67 of the NDPS Act.
3. Jurisdiction and conditions for granting bail under Section 37 of the NDPS Act.
4. Allegations of false implication and procedural irregularities by the Directorate of Revenue Intelligence (DRI).

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The petitioner argued that the Investigating Agency did not comply with the mandatory provisions of Section 50 of the NDPS Act, which requires a notice before conducting a personal search. It was contended that the search was not conducted by a Magistrate or a Gazetted officer, and the DRI officers did not offer their search to the accused persons, thereby violating the provisions of Section 50. The court noted that Section 50 applies only to the personal search of a person and not to the search of a vehicle, container, or luggage. In this case, the search was of a suitcase found in the vehicle, and the petitioner had given written consent that no Magistrate or Gazetted officer was required for the search. Therefore, the plea that notice under Section 50 was not duly served was found to be without substance.

2. Validity of the Statement Recorded under Section 67 of the NDPS Act:
The petitioner claimed that his statement under Section 67 was obtained under coercion while in custody and was later retracted. The court highlighted that a confessional statement, though retracted, can be used against the person if the court is satisfied that it was not obtained by threat, duress, or coercion. However, in this case, the court found that the statement recorded while the petitioner was in custody could not be considered voluntary and lacked corroborative evidence. Therefore, the statement under Section 67 was deemed a weak piece of evidence.

3. Jurisdiction and Conditions for Granting Bail under Section 37 of the NDPS Act:
The court emphasized that Section 37 of the NDPS Act imposes stringent conditions for granting bail, including the requirement that the Public Prosecutor be given an opportunity to oppose the bail application and that the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail. The court found that the Public Prosecutor had been given an opportunity to oppose the bail application, and the heroin recovered was of commercial quantity. However, the court also noted that the petitioner was not likely to abscond as his passport had been seized, and there were reasonable grounds to believe that he was not guilty of the offense.

4. Allegations of False Implication and Procedural Irregularities by the DRI:
The petitioner alleged that he was falsely implicated and that there were procedural irregularities in the DRI's actions. He claimed that he was abducted from his residence, and a complaint regarding his abduction was lodged contemporaneously. The court found that the timings of the alleged abduction and the DRI's interception of the vehicle were contemporaneous, making both views possible. The court also noted that the main accused, Sanjay, who allegedly carried the narcotic drugs, had not been arrested, and the DRI had not made sufficient efforts to trace him. These factors raised doubts about the petitioner's conscious possession of the heroin.

Conclusion:
The court allowed the bail application, ordering the petitioner to be released on bail on furnishing a personal bond of Rs. 1,00,000 with two sureties, subject to conditions including not leaving the NCT of Delhi without court permission, reporting to the Intelligence Officer twice a month, and cooperating with the investigation. The court found that there were reasonable grounds to believe that the petitioner was not guilty of the offense and that he was not likely to commit any offense while on bail.