2016 (3) TMI 392 - HC - Customs

Seeking anticipatory bail - Under Sections 25A/29 of NDPS Act, 1985 - Attraction of Section 37 ibid - Held that - the conduct of the petitioner disentitles him to the relief. Summons were sent to the petitioner for appearance on 28.08.2015 and 31.08.2015 but he sent a reply through counsel showing his inability to appear on the ground that he was in Nasik Kumbh Mela. Thereafter, he approached the High Court of Himachal Pradesh seeking protection where he was granted interim protection subject to the condition that he shall join investigation as and when required by the investigating agency besides other conditions. Several summons were sent to him to join investigation on 2, 03/07/10/15.09.2015 but he failed to join the investigation. Simultaneously, while his application before the High Court of Himachal Pradesh was pending, he also approached the Special Judge, NDPS Cases, Saket Courts, New Delhi and after arguments, withdrew the application before the High Court of Himachal Pradesh on 09.09.2015 and the application before the Special Judge, NDPS Cases, Saket Courts, New Delhi on 10.09.2015. The second application was dismissed on 22.01.2016. The petitioner asked an another opportunity to join investigation which cannot be entertained because as stated above, number of opportunities were granted to him to join investigation but he failed to avail the same. As various summons were issued to him and he failed to appear as a result criminal complaint has been filed against him and the Court had issued non-bailable warrants and even process under Section 82 Cr.PC has been executed. Also the petitioner cannot claim parity with co-accused who have been granted bail as, as per the prosecution case, as in their cases, provision of Section 37 of the Act was not attracted. Therefore, keeping in view the seriousness and gravity of the offence and the conduct of the petitioner himself, he is not entitled to the relief.

Summary

Issues:
Application for anticipatory bail under Section 438 Cr.PC in SC No. 06A/2015 Vide F.No. DRI/HQ/GI/338/XVIII/ENQ-91NT – NIL/2015 under Sections 25A/29 NDPS Act.

Analysis:

1. Petitioner's Submission:
- Petitioner, an ordinary director, seeks anticipatory bail under Sections 25A and 29 of the NDPS Act, claiming false implication.
- Denies involvement in day-to-day affairs, willing to cooperate, and argues Section 37 of the Act doesn't apply.
- Requests bail citing release of co-accused on bail and lack of recovery from him.

2. Respondent's Opposition:
- DRI opposes bail, citing petitioner's non-compliance with investigation despite court orders and summons.
- Alleges petitioner's active role in illegal trade of controlled substances and non-cooperation with authorities.
- Highlights petitioner's misleading address and failure to appear despite multiple summonses.

3. Prosecution's Case:
- Prosecution details recovery of illegal substances from petitioner's factory and fraudulent removal of controlled substances.
- Accuses petitioner of being the managing director involved in a conspiracy for illegal trade.
- Presents evidence of petitioner's presence during illegal activities and non-compliance with investigation.

4. Court's Decision:
- Court acknowledges seriousness of allegations and petitioner's conduct, denying bail application.
- Emphasizes petitioner's repeated failure to join investigation, misleading responses, and non-compliance with court orders.
- Rejects petitioner's plea for another opportunity, considering the gravity of the offence and his conduct.

5. Final Verdict:
- Bail application dismissed based on the severity of allegations, petitioner's conduct, and non-compliance with legal procedures.
- Court clarifies that the decision does not imply an opinion on the case's merits, maintaining neutrality in the judgment.