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2021 (12) TMI 1026 - HC - CustomsDrug trafficking - concealment of contraband goods - admissibility of statements u/s 67 of NDPS Act - HELD THAT - A reading of Section 37 of the NDPS Act indicates that bail can be granted only when there are reasonable grounds for believing that the accused is not guilty of an offence and that he is not likely to commit any offence when released on bail. In Union of India v. Rattan Mallik, 2009 (1) TMI 844 - SUPREME COURT , the Supreme Court had held that while considering an application for grant of bail under the NDPS Act, the Court was not called upon to record a finding of not guilty , but to see whether there was any reasonable ground for believing that the accused was not guilty of the offence(s) that he was charged with and further that he was not likely to commit an offence under the said Act while on bail. In the instant case, the quantity of contraband recovered is 151.980 kgs of ketamine, which is a commercial quantity. In Gurdev Singh v. State of Punjab, 2021 (4) TMI 286 - SUPREME COURT , the Supreme Court had discussed the deleterious impact of narcotic drugs on society, and how the menace of drug addiction did not only have the ability of destroying the life of just one individual, but how it could destroy the lives of generations to come. Therefore, the consequences of dealing of drugs and drug abuse can be experienced across the board, from causing economic issues to societal disintegration. The purpose of enacting the NDPS Act was to curb this menace, and this purpose must be borne in mind while considering the grant of bail pertaining to the NDPS Act. Deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution under Article 21, and is, therefore, unconstitutional to its very core. In such cases, in absence of the pronouncement of conviction, the process itself becomes the punishment. Nine years cannot be said to be a short period of time. This Court is of the opinion that the instant case is fit for grant of bail - bail is granted subject to conditions imposed - application allowed.
Issues Involved:
1. Petitioner’s entitlement to regular bail under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. Applicability of Supreme Court judgments regarding prolonged undertrial detention. 3. Admissibility of statements recorded under Section 67 of the NDPS Act. 4. Compliance with Section 37 of the NDPS Act for granting bail. 5. Consideration of the petitioner's role and involvement in drug trafficking. 6. Examination of the delay in trial proceedings and its impact on the petitioner's right to personal liberty. Detailed Analysis: 1. Petitioner’s Entitlement to Regular Bail under the NDPS Act: The petitioner sought regular bail in a case registered by the Directorate of Revenue Intelligence (DRI) for offenses under Sections 9A, 21, 23, and 25A of the NDPS Act. The petitioner had been in custody since 20.07.2012, and the application for bail was based on prolonged detention and lack of substantial evidence beyond statements recorded under Section 67 of the NDPS Act. 2. Applicability of Supreme Court Judgments Regarding Prolonged Undertrial Detention: The petitioner’s counsel relied on the Supreme Court judgment in *Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India*, (1994) 6 SCC 731, arguing that the petitioner had been an undertrial for over nine years, exceeding the period of half the minimum punishment prescribed under the statute, thereby entitling him to bail. The court acknowledged the relevance of this judgment, emphasizing that prolonged detention without trial contravenes Article 21 of the Constitution of India. 3. Admissibility of Statements Recorded under Section 67 of the NDPS Act: The petitioner’s counsel argued that the statements recorded under Section 67 of the NDPS Act, which were later retracted, could not form the basis for the petitioner’s continued incarceration. The counsel cited *Tofan Singh v. State of Tamil Nadu*, (2013) 16 SCC 31, to assert that such statements have no evidentiary value and are inadmissible. The court noted this argument but focused on the statutory requirements for bail under the NDPS Act. 4. Compliance with Section 37 of the NDPS Act for Granting Bail: Section 37 of the NDPS Act imposes stringent conditions for granting bail in cases involving commercial quantities of contraband. The court reiterated that bail could only be granted if there were reasonable grounds to believe that the accused was not guilty and unlikely to commit an offense while on bail. The court referred to several Supreme Court judgments, including *Collector of Customs v. Ahmadalieva Nodira*, (2004) 3 SCC 549, and *Union of India v. Rattan Mallik*, (2009) 2 SCC 624, which emphasized the necessity of satisfying these twin conditions. 5. Consideration of the Petitioner's Role and Involvement in Drug Trafficking: The DRI opposed the bail, highlighting the recovery of 151.980 kgs of ketamine, a commercial quantity, and the petitioner’s admitted role in exporting contraband. The court noted the petitioner’s involvement as per his Section 67 NDPS Act statement and the co-accused’s disclosures. However, the court also considered the prolonged detention and lack of direct recovery from the petitioner’s premises. 6. Examination of the Delay in Trial Proceedings and Its Impact on the Petitioner's Right to Personal Liberty: The court acknowledged the petitioner’s prolonged detention of over nine years and the delay in trial proceedings, with more than 80 witnesses yet to be examined. The court emphasized that deprivation of personal liberty without a speedy trial is unconstitutional and that the process itself becomes punishment in such cases. The court referred to the Supreme Court’s directions in *Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India* (supra), which mandate bail for undertrials in custody for more than five years for offenses punishable with a minimum imprisonment of ten years. Conclusion: Applying the Supreme Court’s directions and considering the prolonged detention, the court granted bail to the petitioner, subject to conditions ensuring his presence and preventing tampering with evidence. The court emphasized that the observations were solely for the purpose of bail and not on the merits of the case. The application was disposed of, and a copy of the order was directed to be communicated to the concerned Jail Superintendent.
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