2021 (4) TMI 926 - HC - Indian Laws

Grant of regular bail - Recovery of pseudoephedrine hydrochloride from her baggage - section 67 of NDPS Act - HELD THAT - The substance alleged to have been recovered from the petitioner/accused is 19.3 Kg. of pseudoephedrine hydrochloride 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. Whether the petitioner/accused who is a foreign national is entitled to be released on bail, if she is able to make out a case in her favour? - HELD THAT - There is no bar for releasing foreign national on bail, if the case so warrants. The bar of section 37 of the NDPS Act is not applicable. Therefore, keeping in view the entire facts and circumstances, the petitioner/accused who is in J.C. since 13.07.2019 is admitted to bail on her 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 NCB Office, the address at which she will reside during the period she is on bail - application disposed off.

Summary

Issues:
Grant of regular bail under Section 439 Cr.P.C. in SC No. 411 of 2019 related to the recovery of pseudoephedrine hydrochloride at IGI Airport. Interpretation of Section 37 of the NDPS Act regarding the bar for granting bail. Consideration of the petitioner's status as a foreign national and the potential influence on witnesses if released on bail.

Analysis:

1. Grant of Regular Bail: The petitioner sought bail, arguing that she had been in custody since her arrest in July 2019, and the charges were framed. The petitioner's counsel contended that the recovered substance, pseudoephedrine, was a controlled substance, not a narcotic drug or psychotropic substance, thus not falling under the bar for bail as per Section 37 of the NDPS Act. The counsel highlighted the completion of the investigation and the petitioner's cooperation, emphasizing her lack of criminal antecedents.

2. Interpretation of Section 37: The court considered the applicability of Section 37 of the NDPS Act, which imposes restrictions on granting bail for offenses involving commercial quantities of narcotic drugs or psychotropic substances. The judgment clarified that the petitioner faced charges under Sections 9A and 25A of the NDPS Act related to controlled substances, not covered under Section 37. The court emphasized that the concept of commercial quantity applies only to narcotic drugs and psychotropic substances, not controlled substances like pseudoephedrine.

3. Status of the Petitioner as a Foreign National: The court addressed the petitioner's status as a foreign national and the concerns raised by the respondent regarding potential witness tampering and flight risk. Citing legal precedents, the court emphasized the importance of personal liberty and the need for a balanced approach in deciding bail for foreign nationals. Relying on relevant judgments, the court concluded that being a foreign national should not automatically bar the petitioner from being granted bail if the circumstances warrant it.

4. Judicial Precedents and Considerations: The judgment referenced various legal precedents, including cases where bail was granted even for larger quantities of controlled substances. The court highlighted the principles of rule of law, constitutional mandates, and human rights in considering the petitioner's bail application. Additionally, the court distinguished the case cited by the respondent, Union of India Vs. Prateek Shukla, noting its inapplicability to the present case due to different sections of the NDPS Act involved.

5. Bail Conditions: After thorough consideration of the arguments and legal provisions, the court granted bail to the petitioner, requiring her to furnish a personal bond and sureties. The court imposed conditions such as regular reporting to the NCB office, restrictions on leaving the NCT of Delhi without court permission, and updating the address with the NCB office. The judgment emphasized that the bail order did not reflect any opinion on the case's merits.

In conclusion, the judgment by the Delhi High Court under Justice Rajnish Bhatnagar addressed the complexities of granting bail in a case involving controlled substances, the interpretation of relevant sections of the NDPS Act, and the considerations regarding the petitioner's status as a foreign national. The detailed analysis provided clarity on the legal principles applied in deciding the bail application, ensuring a balanced approach while upholding constitutional values and legal precedents.