2021 (3) TMI 751 - HC - Indian Laws

Grant of Regular Bail - Smuggling - Heroin - Contraband item - Section 37 of the NDPS Act - cognisable and non-bailable offence - HELD THAT - It is well settled that the jurisdiction of a Court to grant bail for offences under NDPS Act, bail in cases of recovery of commercial quantity is circumscribed by the provision of Section 37 of the Act. The bail can be granted only when there are reasonable grounds for believing that the accused is not guilty of the offence and he is not likely to commit any offence when released on bail. The parameters for grant of bail to accused involved in the offence under NDPS Act have been laid down in a number of judgments. The Supreme Court in CUSTOMS, NEW DELHI VERSUS AHMADALIEVA NODIRA 2004 (3) TMI 70 - SUPREME COURT has held that satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression reasonable grounds means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Applying the law laid down by the Supreme Court in the present case, it appears that the drugs were being sent in a very organised manner. Drugs were deftly packed and sent concealed in shock absorbers shows that the operations were well planned. The panchnama of the items recovered from the house of the petitioner includes a black and red coloured rectangular box marked as roneo shock absorber , the same type of shock absorber in which the contraband was recovered. Another broken shock absorber with broken pieces was also recovered from the petitioner. Tools which could be used for opening shock absorber and placing the contraband into the shock absorber were also recovered - It cannot be said at this point of time that the petitioner was not involved in the offence and the way in which the operation was being carried on shows that the possibility of the petitioner indulging in the same activity again cannot be ruled out. Further, the petitioner is a Nigerian and does not have roots in the society and therefore his chances of absconding also cannot be ruled out. This Court is not inclined to grant bail to the petitioner at this juncture - Application dismissed.

Summary

Issues Involved:
1. Application for regular bail under Section 439 CrPC read with Section 37 of the NDPS Act.
2. Admissibility of the disclosure statement under the NDPS Act.
3. Parity in granting bail.
4. Evidence and material recovered linking the petitioner to the offence.
5. Compliance with Section 37 of the NDPS Act regarding bail for offences involving commercial quantity.

Detailed Analysis:

1. Application for Regular Bail Under Section 439 CrPC Read with Section 37 of the NDPS Act:
The petitioner sought regular bail in a case involving the recovery of 575 grams of heroin, a commercial quantity, from a parcel intercepted by NCB. The petitioner’s bail application was previously rejected by the Special Judge, NDPS Act, and the petitioner has been in judicial custody since 30.01.2017.

2. Admissibility of the Disclosure Statement Under the NDPS Act:
The petitioner’s counsel argued that the arrest was based on the disclosure statement of co-accused Stanley, which is inadmissible as per the judgment in Tofan Singh v. State of Tamil Nadu. The court considered this argument but emphasized the cumulative evidence, including the recovery of items from the petitioner’s house and call detail records (CDR) linking the petitioner to the co-accused.

3. Parity in Granting Bail:
The petitioner’s counsel contended that the petitioner should be granted bail on the ground of parity as co-accused Anand Kumar Thakur was granted bail. However, the court noted that each case must be evaluated on its facts, and the evidence against the petitioner, including the recovery of specific items and CDRs, distinguished his case from that of the co-accused.

4. Evidence and Material Recovered Linking the Petitioner to the Offence:
The court detailed the evidence, including:
- Recovery of a black and red rectangular box marked "Roneo Shock Absorber" and broken shock absorber parts from the petitioner’s house.
- Tools and weighing machines that could be used for packing drugs.
- CDRs showing the petitioner was in constant touch with Stanley, who brought the parcel containing heroin.

5. Compliance with Section 37 of the NDPS Act Regarding Bail for Offences Involving Commercial Quantity:
The court reiterated that for offences involving commercial quantities under the NDPS Act, bail can only be granted if there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail. The court cited several Supreme Court judgments emphasizing the stringent conditions under Section 37.

Conclusion:
The court found that the petitioner was involved in a well-organized drug trafficking operation, evidenced by the recovery of specific tools and materials from his house and his communication with co-accused Stanley. Given the commercial quantity of heroin involved and the stringent requirements of Section 37 of the NDPS Act, the court concluded that there were no reasonable grounds to believe the petitioner was not guilty or that he would not commit further offences if released on bail. Additionally, the petitioner being a foreign national with no roots in society increased the risk of absconding. Therefore, the court dismissed the bail application.