2022 (11) TMI 637 - HC - Customs

Seeking grant of regular bail - recovery of contraband item - 41 spheroid shaped pellets wrapped in transparent tape, which was found positive for Cocaine, weighing 595 grams - recovery corroborated by statement of the witnesses and circumstances of the case - HELD THAT - In the present case, de hors the statement recorded under Section 67 of the NDPS Act, the following factors are taken into account i) Recovery of Cocaine from the possession of the petitioner; ii) Recovered Cocaine falls in commercial quantity; iii) Petitioner was intercepted near the exit gate of Customs Arrival Hall at the airport; iv) Statements of recovery witnesses were recorded at the time of recovery; v) Samples were drawn before the learned Magistrate and proceedings were duly photographed and videographed and vi) The trial has commenced and Examination of the witnesses is under progress. The strict conditions for granting bail under Section 37 of the NDPS Act cannot be said to be satisfied in the present case. None of the ground argued by the learned counsel for the petitioner can be made basis of reaching to the conclusion that there are reasonable grounds to believe that the petitioner is not guilty of the offence. These may be good grounds to be argued at the stage of final arguments, but at the present stage, this Court cannot reach to a reasoned conclusion that petitioner has not committed the offence - Similarly, there is nothing on record to satisfy that if the petitioner is released on bail, she will not again indulge in the same crime, during the bail period. The twin conditions set out in Section 37 of the NDPS Act for granting bail are not satisfied. No grounds are made out for grant of bail to the petitioner at this stage - bail application is accordingly dismissed.

Issues Involved:

1. Application for regular bail under the NDPS Act.
2. Compliance with procedural requirements during seizure and sampling.
3. Admissibility of confessional statements under Section 67 of the NDPS Act.
4. Application of Section 37 of the NDPS Act regarding bail.
5. Precedents and judgments cited by both parties.

Issue-Wise Detailed Analysis:

1. Application for Regular Bail under the NDPS Act:
The petitioner sought regular bail in case SC No.441453/2016, having been in custody since her arrest on 04.05.2016. The prosecution alleged that the petitioner was intercepted at the airport carrying 595 grams of Cocaine. The petitioner argued that nothing incriminating was recovered from her, the seizure and sampling were not done as per the law, and the forensic report did not state the percentage of Cocaine. The petitioner also claimed her confessional statement was inadmissible.

2. Compliance with Procedural Requirements During Seizure and Sampling:
The respondent contended that the petitioner had made a voluntary statement under Section 67 of the NDPS Act, admitting the recovery of drugs. The due procedure of law was followed during the seizure, and samples were drawn before the learned Magistrate, with proceedings duly photographed and verified. The respondent argued that the mandatory provisions of Section 37 of the NDPS Act could not be ignored, and the recovery of narcotic drugs in commercial quantity was corroborated by witness statements.

3. Admissibility of Confessional Statements under Section 67 of the NDPS Act:
The petitioner relied on several judgments to argue that her confessional statement under Section 67 was inadmissible. The court noted the recent Supreme Court decision in "N.C.B. v. Mohit Aggarwal," which emphasized that confessional statements under Section 67 are inadmissible in trials under the NDPS Act. However, the court also considered other circumstantial evidence presented by the respondent.

4. Application of Section 37 of the NDPS Act Regarding Bail:
The court examined the stringent conditions for granting bail under Section 37 of the NDPS Act, which requires the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit any offense while on bail. The court found that the petitioner did not meet these conditions, as the recovery of Cocaine in commercial quantity and other evidence suggested a high probability of conviction.

5. Precedents and Judgments Cited by Both Parties:
Both parties cited various judgments to support their arguments. The petitioner referred to cases where bail was granted due to procedural lapses or the inadmissibility of confessional statements. The respondent cited judgments emphasizing strict compliance with Section 37 of the NDPS Act and the need to deal strictly with drug traffickers. The court considered these precedents but ultimately found that the petitioner's case did not satisfy the conditions for bail under Section 37.

Conclusion:
The court concluded that the stringent conditions for granting bail under Section 37 of the NDPS Act were not satisfied. The recovery of Cocaine in commercial quantity, corroborated by witness statements and procedural compliance, indicated a high probability of conviction. The petitioner's arguments were deemed more appropriate for final arguments rather than for bail consideration. Consequently, the bail application was dismissed.

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