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2021 (9) TMI 150 - HC - Indian LawsSeeking grant of bail - Smuggling - 159 grams of MDMA of commercial quantity - contraband from foreign countries - seizure u/s 67 of the NDPS Act - twin requirements under Section 37(1)(b) of the NDPS Act or not - HELD THAT - Admittedly, the consignment was addressed to Amitha Radhakrishnan and not to the petitioner. Even the earlier parcel referred to by the prosecution which was said to have contained 25 grams of ganja, was also addressed to Amitha Radhakrishnan. It is stated that Amitha Radhakrishnan and the petitioner were in live-in relationship residing in the address mentioned in the parcel. It is stated that Amitha Radhakrishnan has given a statement that she was not aware of the bad deals that are being held by the petitioner, but, however, she says that it must be the petitioner who used to book the consignment in her name and used to manage her bank accounts. In the present case, the prosecition has placed sufficient materials to show that the commercial quantity of contraband i.e., MDMS was seized from the parcel that was lying in the foreign post office. The prosecution is relying on the statements of the petitioner and Amitha Radhakrishnan to establish the link between the petitioner and the offence in question - the materials that are placed before the Court are not sufficient to convict the petitioner or to hold him guilty. It is not the contention of the prosecution that the petitioner is having any criminal antecedents. Therefore, it can be held at this stage that he is not likely to commit any offence, if he is enlarged on bail. This Court is conscious of the fact that, it is not the stage either to declare the petitioner as innocent or guilty for the offences as alleged. At the initial stage of considering the bail application filed by the petitioner, prima facie satisfaction about the materials placed on record is to be looked into and on consideration of such materials, in light of the rival contentions, there are reasonable grounds for believing that the petitioner is not guilty of such offences and that he is not likely to commit any offence, while on bail. When these twin conditions as under Section 37(1)(b) of the NDPS Act are satisfied, there are no reason to reject the prayer made by the petitioner. The petitioner is entitled to be enlarged on bail subject to conditions, which will take care of the apprehension expressed by the learned CGSC that the petitioner may abscond, he may commit similar offences or may tamper or threaten the prosecution witnesses - Petition allowed.
Issues Involved:
1. Whether the petitioner is entitled to bail under Section 439 of Cr.P.C.? 2. Satisfaction of the twin conditions under Section 37 of the NDPS Act. 3. Evaluation of the evidence and materials presented by the prosecution. 4. Consideration of the petitioner’s fundamental rights under Article 21 of the Constitution of India. Detailed Analysis: Issue 1: Whether the petitioner is entitled to bail under Section 439 of Cr.P.C.? The petitioner sought bail under Section 439 of Cr.P.C. in a case registered under the NDPS Act. The petitioner argued that he was falsely implicated and had no connection to the contraband seized. The prosecution contended that credible information led to the seizure of MDMA from a parcel addressed to Amitha Radhakrishnan, with whom the petitioner was residing. Despite the prosecution's arguments, the court concluded that the materials presented were insufficient to establish the petitioner’s guilt at this stage. The court found that the petitioner had no criminal antecedents and had been in judicial custody since 20.08.2020, thus granting bail. Issue 2: Satisfaction of the twin conditions under Section 37 of the NDPS Act. The court examined whether the twin conditions under Section 37(1)(b) of the NDPS Act were satisfied: (i) reasonable grounds for believing the accused is not guilty, and (ii) the accused is not likely to commit any offence while on bail. The prosecution relied on statements under Section 67 of the NDPS Act and bank transactions to link the petitioner to the contraband. However, the court noted that these materials were insufficient to convict the petitioner or establish his guilt conclusively. Therefore, the court held that the twin conditions were satisfied, justifying the grant of bail. Issue 3: Evaluation of the evidence and materials presented by the prosecution. The prosecution presented evidence including the seizure of MDMA from a parcel, statements of the petitioner and Amitha Radhakrishnan, and bank transactions. The court observed that the parcel was not addressed to the petitioner, and the evidence linking him to the contraband was primarily based on statements under Section 67 of the NDPS Act, which required further substantiation. The court also noted the lack of direct evidence showing the petitioner’s involvement in booking the consignment or managing the bank accounts for illegal transactions. Thus, the court found the evidence insufficient to deny bail. Issue 4: Consideration of the petitioner’s fundamental rights under Article 21 of the Constitution of India. The petitioner argued that denying bail would infringe on his fundamental right to life and liberty under Article 21 of the Constitution of India. The court considered precedents emphasizing the protection of fundamental rights and the necessity of a prima facie satisfaction of the accused's involvement in the offence. Given the lack of substantial evidence against the petitioner and the completion of the investigation, the court concluded that denying bail would amount to pre-trial punishment, thus infringing on his fundamental rights. Conclusion: The court, after considering the rival contentions and the materials on record, concluded that the petitioner satisfied the twin conditions under Section 37(1)(b) of the NDPS Act. The court granted bail to the petitioner, subject to conditions to ensure he does not commit similar offences, tamper with evidence, or abscond. The petitioner was required to furnish a bond of ?5,00,000 with two sureties and comply with specific conditions, including marking attendance before NCB, Bengaluru, and not leaving the trial court's jurisdiction without permission. Order: The petition for bail was allowed with the following conditions: - The petitioner shall not commit similar offences. - The petitioner shall not threaten or tamper with prosecution witnesses. - The petitioner shall appear before the Investigation Officer or the Court as and when required. - The petitioner shall mark his attendance before NCB, Bengaluru, once in 15 days. - The petitioner shall not leave the jurisdiction of the Trial court without prior permission. If any conditions are violated, the prosecution may seek cancellation of bail. The Trial Court was directed to verify the correctness of the addresses and authenticity of the documents furnished by the petitioner and the sureties before accepting the sureties for the purpose of releasing the petitioner on bail.
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