2023 (6) TMI 535 - HC - Indian Laws

Seeking grant of bail - recovery of 700 grams amphetamine - contraband item - presumption regarding the culpable mental state of an accused and possession of illicit articles - HELD THAT - This Court is of the considered opinion that prima facie it seems that the petitioner was not the owner of the package and had merely facilitated the booking of the package with the courier company on behalf of and at the request of the Nigerian national. This seems prima facie possible from the sequence of events in that when the NCB approached the petitioner on 16th November, 2022, the petitioner stated clearly that he had indeed booked the parcel for the Nigerian and sent the receiver details through Whatsapp to the courier person. This was further corroborated by the statement recorded by the courier person. Also, upon asking of the NCB, the petitioner continued to communicate with the Nigerian Ike and told him regarding the return of the package. Pursuant to his communication with the Nigerian, that the lady Abigail Momah was sent to collect the return of the package. This would possibly show that he was merely an intermediary who was used to courier the package which did not belong to him. There is no evidence in the complaint that the package belonged to the petitioner, in that he was the one who was packing and dispatching the contraband. There are call records to show that messages have been received from the Nigerian and that the return parcel was to be collected by the person sent by the Nigerian. At this stage, the benefit of doubt would have to go to the petitioner as not being the owner and possessor of the said package of contraband. In the considered opinion of this Court, there are reasonable grounds for believing that the petitioner is not guilty of the offence as alleged. Furthermore, considering he has no previous involvements and that his conduct and work has been certified by his employer and there is no adverse information regarding his past, it would be prudent to believe that he is not likely to commit any offence while on bail. The petitioner is directed to be released on bail on furnishing a personal bond with one surety of the like amount subject to the satisfaction of the Ld. Trial Court, further subject to the conditions imposed - application allowed.

Issues Involved:
1. Whether the petitioner was in conscious possession of the contraband.
2. Whether the petitioner's involvement in the alleged crime was substantial or merely facilitative.
3. Applicability of presumptions under Sections 35 and 54 of the NDPS Act.
4. Admissibility of the petitioner's disclosure statement.
5. Suitability of granting bail under Section 37 of the NDPS Act.

Summary:

1. Conscious Possession of Contraband:
The court observed that the petitioner was not the owner of the package and had merely facilitated the booking of the package with the courier company on behalf of and at the request of the Nigerian national. The petitioner's role seemed prima facie limited to using his identity details for couriering the package. There was no recovery of contraband from the petitioner, and the only evidence was a disclosure statement, which is inadmissible.

2. Petitioner's Involvement:
The petitioner had facilitated the shipping of the package at the behest of a Nigerian national who frequented the shop where the petitioner worked. The petitioner's actions, including communicating with the Nigerian national and arranging for the collection of the return parcel by Abigail Momah, indicated that he was merely an intermediary and not the owner of the contraband.

3. Presumptions under Sections 35 and 54 of the NDPS Act:
The NCB argued that there is a presumption regarding the culpable mental state of the accused and possession of illicit articles. However, the court found that the evidence did not support the petitioner's conscious possession of the contraband.

4. Admissibility of Disclosure Statement:
The court noted that the petitioner's alleged confession, stating he knew the package contained contraband and had taken Rs. 10,900/- for booking it, was inadmissible as per the Supreme Court's decision in Tofan Singh v. State of Tamil Nadu.

5. Granting Bail under Section 37 of the NDPS Act:
The court referred to the Supreme Court's decision in Mohd. Muslim v. State (NCT of Delhi), emphasizing that the satisfaction required for granting bail under Section 37 should be based on a prima facie look at the material on record. The court found reasonable grounds for believing that the petitioner was not guilty of the alleged offence. Considering the petitioner's lack of previous involvement in criminal activities and his prolonged custody since November 2022, the court deemed it prudent to grant bail.

Conclusion:
The court granted bail to the petitioner, directing his release on furnishing a personal bond of Rs. 50,000/- with one surety of the like amount. The petitioner was required to comply with specific conditions, including not leaving the country without court permission, providing a permanent address, appearing before the court as required, joining the investigation when called, maintaining working mobile numbers, and reporting to the IO every alternate Saturday.

Disposition:
The petition was disposed of, and any pending applications were deemed infructuous. The order/judgment was to be uploaded on the court's website.

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