2022 (1) TMI 802 - HC - Indian Laws

Seeking grant of regular bail - smuggling - Pseudo-Ephedrine - Cocaine - whether rigors U/s 37 of the NDPS Act applies to the case of the petitioner or not? - Section 14 of Foreigner Act and 471 of IPC - HELD THAT - The present petitioner is facing prosecution for charges U/s 9A and 25 A of the NDPS Act and hence obviously his case would not be covered U/s 37 of the NDPS Act. Moreover, as far as Section 9A which deals with controlled substance is concerned, there is no categorization of small quantity or commercial quantity. Therefore, concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substance. Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. Controlled substance means any substance which the Central Government may, having regard to the available information as to its possible use in the production manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention, by notification be a controlled in the official Gazette, declare substance. The Ministry of Finance Department of Revenue vide its notification dated 28th December, 1999 has declared pseudo-ephedrine a controlled substance under the Act - the substance alleged to have been recovered from the petitioner/accused is 3.5 Kg. of pseudoephedrine which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to ₹ 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act. The other recovery from the possession of the petitioner is 15 gm. Cocaine which is also not a commercial quantity, therefore, in the instant case, bar of Section 37 of NDPS Act is not applicable. Though the petitioner is a foreigner, there is no bar to release a foreign national on bail in the given facts and circumstances of this case. In the present case, the petitioner is married to an Indian lady and having kids with her. The factum of his marriage and kids has been verified by the state and statements of the relatives of the wife of the petitioner have already been recorded in this regard. The petitioner is admitted to bail on his furnishing personal bond in the sum of ₹ 1,00,000/- with two solvent sureties each of the like amount subject to the satisfaction of the trial Court. Being released on bail, the petitioner shall inform the IO of the case, the address at which he will reside during the period he is on bail. The application is disposed of.

Summary

Issues:
1. Bail application under Section 439 Cr.P.C. for regular bail in a case involving NDPS Act, IPC, and Foreigners Act.

Analysis:
The judgment pertains to a bail application filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in a case involving FIR No. 33/2018 under Section 9/21/25A of the NDPS Act, Section 471 IPC, and Section 14 of the Foreigners Act registered at P.S. Crime Branch, Delhi. The case originated from a raid where a person was apprehended for supplying Pseudo Ephedrine, leading to a series of arrests and disclosures about the drug supply chain. The petitioner was subsequently arrested with a significant quantity of controlled substances, leading to the addition of charges under the Foreigners Act and IPC.

The primary issue addressed in the judgment was whether the rigors of Section 37 of the NDPS Act applied to the petitioner's case. It was highlighted that the petitioner faced charges under Section 9A and 25A of the NDPS Act, involving controlled substances, not narcotic drugs or psychotropic substances. The concept of commercial quantity was discussed in relation to controlled substances, emphasizing that the bar of Section 37 was not applicable in the present case due to the nature of the recovered substance.

Furthermore, the judgment delved into the question of whether a foreign national, like the petitioner, was entitled to bail. Citing legal precedents, the court emphasized the importance of personal liberty and the need for a balanced approach in considering bail for foreign nationals. The court referred to cases where bail was granted even in instances of larger recoveries of controlled substances, emphasizing the individual circumstances of each case.

The court ultimately granted bail to the petitioner, considering factors such as his marital status with an Indian woman, verification of family details, and the likelihood of a prolonged trial. Specific bail conditions were imposed, including furnishing a personal bond, providing sureties, reporting to the IO regularly, and restrictions on leaving the NCT of Delhi without court permission. The judgment concluded by stating that the bail grant did not reflect any opinion on the case's merits, emphasizing procedural aspects and bail conditions.