2018 (10) TMI 1283 - HC - Customs

Bail Application - Smuggling - blackish brown hard shape substance suspected to be narcotics - Petitioner, is alleged to have disclosed that he was involved in the booking of parcels containing drugs and he was doing this to earn more money - section 37 of NDPS Act - Held that - Public Prosecutor has been given an opportunity and he has opposed grant of bail. Therefore, before petitioner is entitled to be released on bail, this Court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit the same while on bail. The field test allegedly indicated THC and 9 out of 10 packets were neither tested nor sampled. The physical properties weight of the suspected substance as recorded in the complaint panchnama, its memo are at variance with the one s recorded by the Chemical Examiner. Panchnama records the substance as blackish brown hard shaped with weight of the sample being 5 grams. Chemical Examiner has noted the content to be greenish-brown coloured soft mass with weight of sample being 3.4 grams. The parcel that is booked is not booked in the name of the petitioner but in the name of one Rakesh Kumar. Even the ID proof, which was submitted, was not of the petitioner but of Rakesh Kumar. Rakesh Kumar is alleged to be an employee of DHL, the courier agency. The article was recovered in the possession of the courier agency. The discrepancy that is being further pointed out is that the article was booked on 17.08.2013 and was allegedly dispatched from the Chandigarh branch on 17.08.2013 and reaches Delhi on 24.08.2013. For the period between 17.08.2013 and 23.08.2013, the article admittedly remained in the possession of DHL but there is no tracking report or status with regard to said period of seven days. Further, the statement under section 67 of NDPS Act, of the petitioner, relied on by the respondents, is not as incriminating as is sought to be projected. It only records that whatever mistake he and his owner have committed, he apologises for the same and in future, he shall not book any parcel in which there are drugs. Further as per the petitioners the statement was not voluntary and has been retracted immediately. Thus, there are reasonable grounds for believing that the present petitioner is not guilty of the offence for which he has been charged - the petitioner is not likely to commit any offence on bail, learned counsel for the petitioner has pointed out that there are no criminal antecedents and further that he had booked several parcels in the past and no complaint was received qua any of the parcels that he booked. This has not been controverted by the prosecution. The requirements of Section 37 NDPS Act, have been fulfilled and, therefore, it is a fit case in which the petitioner is to be released on bail - on petitioner furnishing a bail bond in the sum of ₹ 25,000/- with one surety of the like amount to the satisfaction of the Trial Court, petitioner shall be released on bail, with certain restrictions imposed - petition allowed.

Summary

Issues Involved:
1. Allegations and evidence against the petitioner.
2. Discrepancies in the prosecution's case.
3. Compliance with Section 37 of the NDPS Act.
4. Consideration of bail for the petitioner.

Issue-wise Detailed Analysis:

1. Allegations and Evidence Against the Petitioner:
The petitioner sought regular bail in a case under Sections 20(c), 23, 28, and 29 of the NDPS Act, 1985. The complaint alleged that during an X-ray screening of goods meant for export, a suspicious packet was detained. The packet contained wooden frames concealing 3.395 kg of a substance suspected to be narcotics. Subsequent tests confirmed the presence of Charas/Hashish. The consignment was linked to the petitioner through various statements and documents, including those from employees of the courier company and the petitioner’s own statements under Section 67 of the NDPS Act.

2. Discrepancies in the Prosecution's Case:
The petitioner’s counsel highlighted several discrepancies:
- The consignment was originally booked by Rakesh Kumar, not the petitioner.
- The DTDC Air Way Bill had inconsistencies in the description and weight of the contents.
- Only three representative samples of 5 grams each were taken, contrary to the required 23 grams per sample.
- The physical properties and weight of the samples differed between the Panchnama and the Chemical Examiner’s report.
- The alleged narcotic substance was described differently in various documents.
- The petitioner’s statements under Section 67 were retracted and claimed to be non-voluntary.

3. Compliance with Section 37 of the NDPS Act:
Section 37 of the NDPS Act stipulates that bail can only be granted if the court is 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 noted that the Public Prosecutor opposed the bail but failed to counter the discrepancies pointed out by the petitioner’s counsel effectively.

4. Consideration of Bail for the Petitioner:
The court observed significant discrepancies in the prosecution's case, including inconsistencies in the weight and description of the seized substance, and the fact that the consignment was not booked in the petitioner’s name. The petitioner had no criminal antecedents and had booked several parcels in the past without any complaints. The court was satisfied that there were reasonable grounds to believe that the petitioner was not guilty of the alleged offense and was not likely to commit any offense while on bail.

Conclusion:
The court granted bail to the petitioner, subject to furnishing a bail bond of ?25,000 with one surety of the like amount. The petitioner was required to provide his permanent residential address, active mobile number, and mark his presence at the local police station on the first Saturday of each month. The petitioner was also restricted from leaving the country without the trial court's permission. The court clarified that the observations made were only for the purposes of granting bail and would not influence the trial.