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2015 (10) TMI 2028 - HC - CustomsRelease on bail - Offences punishable under Sections 22(c), 23(c) and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985 Petitioner contended that article seized is not contraband and she is not involved in any other criminal cases nor have any criminal antecedents - FSL report did not mention the percentage of drugs in article Bail shall be granted conditionally Respondent contended that they made out prima facie case about the accused s involvement in offence and she have been carrying KETAMINE in her back-pack in a concealed manner - Court should be satisfied that during bail, the petitioner is not going to commit any other offence. Held That - Contraband article is mentioned at Sl. No. 110A of Schedule-H to the NDPS Act thus not prohibited Some minute details such as it is not mentioned that when the back pack checked was offloaded and brought to airport authorities for inspection; whether the bag was locked and who had the key and how they opened the bag; are missing - Contraband article seized from exclusive possession of Petitioner at the time of seizure; no prima facie material given in support of same Petition allowed thus bail granted conditionally on execution of bond and such other terms Decided in favour of Petitioner.
Issues Involved:
1. Legality of the bail application under Section 439 of Cr. P.C. read with Section 37 of the NDPS Act. 2. Whether Ketamine Hydrochloride is classified as a contraband under the NDPS Act. 3. Admissibility of the confessional statement under Section 25 of the Evidence Act. 4. Prima facie involvement of the petitioner in the alleged offence. 5. Conditions for granting bail to the petitioner. Issue-wise Detailed Analysis: 1. Legality of the Bail Application: The petitioner filed the bail application under Section 439 of Cr. P.C. read with Section 37 of the NDPS Act, seeking release on bail for offences punishable under Sections 22(c), 23(c), and 28 of the NDPS Act. The prosecution opposed the bail, arguing a prima facie case against the petitioner. 2. Classification of Ketamine Hydrochloride: The defense argued that Ketamine Hydrochloride falls under the Drugs and Cosmetics Act and not as a contraband under the NDPS Act. The Central Government's notification dated 16-3-2006, issued by the Ministry of Health and Family Welfare, lists Ketamine Hydrochloride under Schedule-H of the Drugs and Cosmetics Rules, 1985. The court noted that Ketamine Hydrochloride is not mentioned in Schedule I, II, or III of the NDPS Rules, 1985, but is listed at Sl. No. 110A in Schedule-H to the NDPS Act. Therefore, it cannot be classified as a prohibited article under the NDPS Rules. 3. Admissibility of the Confessional Statement: The defense contended that the confessional statement given by the petitioner is inadmissible under Section 25 of the Evidence Act. The court referred to the Supreme Court's ruling in Nirmal Singh Pehlwan's case, which held that a confession made to a Customs Officer is inadmissible under Section 25 of the Evidence Act. Therefore, the confessional statement cannot be relied upon at this stage. 4. Prima Facie Involvement: The court examined the evidence, including the mahazar and the voluntary statement. It was noted that the contraband was not seized from the exclusive possession of the petitioner at the time of seizure, as the baggage was checked in and under the custody of airport authorities. The court found no prima facie material to show that the contraband was seized from the exclusive possession of the petitioner, which needs to be ascertained during the trial. 5. Conditions for Granting Bail: The court considered the prosecution's argument that the petitioner might commit similar offences if released on bail. However, it was noted that there were no materials to show the petitioner's involvement in other crimes. The petitioner is a woman and has undertaken to abide by any conditions imposed by the court. The court decided to exercise discretion in favor of the petitioner, subject to stringent conditions to ensure her presence during the trial. Conclusion: The petition was allowed, and the petitioner was ordered to be released on bail subject to the following conditions: - Execution of a bond for Rs. 1,00,000 with two solvent local sureties. - No intimidation or tampering with prosecution witnesses. - Regular attendance in court. - No leaving the place without prior permission from the Special Court. - No involvement in similar acts as alleged in the case.
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