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2024 (11) TMI 1275 - HC - Indian LawsSeeking grant of bail - smuggling of huge commercial quantity of heroin - recording of statements u/s 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 - existence of other corroborative evidences or not - right of Accused of speedy trial - HELD THAT - Admittedly the record show that present Applicant and Accused No. 1 were partners in a firm dealing with clearing of the consignment. It is also claimed that Accused No.1 and the present Applicant are related with each other. In such circumstance, phone calls between Accused Nos. 1 and 2 are but natural, on personal front as well as on business transaction - The transactions which have been pointed out on behalf of the respondent are only with regard to charge of fees with regard to clearance of the consignment. Such amounts are only in few thousand and not having any suspicion with regard to the contention of dealing in drugs. The Clearing Agent or a person who is facilitating the agent to clear the consignment is not supposed to know an exact material which is found in the said consignment though such bills required to be mentioned about it. Admittedly such consignment was received from a foreign country and it requires customs clearance since the customs authorities suspected some foul play, they alerted the DRI and accordingly raid was conducted - Applicant was not present when the consignment was opened and search was carried out. It was Accused No.1, who was present during the search of the said consignment and he was responsible for clearing the said consignment though claimed for and on behalf of Accused Nos.2 and 4. Thus the material which has been collected by the complainant qua the present Applicant is not enough to sufficiently corroborating the case and existence of the call details and forwarding of the bills to Accused No.1 cannot be considered as presumption of the knowledge of the Applicant about the drugs concealed in the said consignment. In the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. 2022 (8) TMI 152 - SUPREME COURT , the Apex Court has observed that prolong incarceration and inordinate delay engaged in the conclusion or the trial would certainly affect the right of Accused of speedy trial and in such circumstance, Section 37 of NDPS Act or such provisions under the Special Acts would not be an impediment to grant bail. The Apex Court further observed that the person seeking bail is still an Accused and not a convict and thus he is entitled for a speedy trial and if it is not possible to decide his case as enshrined under Article 21 of the Constitution and if he is kept inside without any progress in the matter, such Accused is certainly entitled to be released on bail. Similar observations are found in the case of ANKUR CHAUDHARY VERSUS STATE OF MADHYA PRADESH 2024 (5) TMI 1463 - SC ORDER by the Apex Court which consider the embargo under Section 37 of the NDPS Act. The Apex Court found that failure to conclude trial within a reasonable period resulting in prolong incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act could be considered. Coming back to the matter in hand, it is no doubt true that a huge commercial quantity of heroin was found in the container, but except statement under Section 67 of NDPS Act which is otherwise not admissible in evidence as far as admissions/ confessions of the present Applicant are concerned, there is hardly any corroborative evidence. Thus the provisions of Section 37 of the NDPS Act would not be considered as an embargo in the present matter even though commercial quantity was detected and seized - Applicant is in custody from last 3 years and till date there is absolutely no progress in the said matter. The conclusion of trial in near future is again a remote possibility. Accordingly, I am of the considered opinion that the Applicant is entitled for the bail in connection with the present matter. However, on strict conditions. Applicant shall be released on furnishing a personal bond of Rs.1 Lakh with two solvent sureties in the like amount to the satisfaction of the Learned Special Court and on the fulfilment of conditions imposed - bail application allowed.
Issues Involved:
1. Application for bail under Section 439 of the Cr. PC by Accused No. 2. 2. Applicability of Section 37 of the NDPS Act concerning long incarceration and right to a speedy trial. 3. Admissibility of statements recorded under Section 67 of the NDPS Act. 4. Examination of evidence and corroborative material against Accused No. 2. 5. Consideration of precedents and legal principles regarding bail in NDPS cases. Detailed Analysis: 1. Application for Bail under Section 439 of Cr. PC: The Applicant, Accused No. 2, sought bail under Section 439 of the Cr. PC, asserting that he was merely acting as a Clearing Agent for Accused No. 1 and had no involvement with the narcotics found in the consignment. The Applicant emphasized that there was no corroborative material linking him to the offense, apart from statements recorded under Section 67 of the NDPS Act. 2. Applicability of Section 37 of the NDPS Act and Right to Speedy Trial: The Applicant argued that the prolonged incarceration without trial progress violated his right to a speedy trial, as guaranteed under Article 21 of the Constitution. He contended that the rigors of Section 37 of the NDPS Act should not apply due to the delay in trial proceedings. The court acknowledged the Applicant's three-year custody period and the lack of trial progress, noting that the trial's conclusion was not foreseeable in the near future. 3. Admissibility of Section 67 NDPS Act Statements: The court examined the admissibility of statements recorded under Section 67 of the NDPS Act, referencing the Apex Court's decision in Toofan Singh v. State of Tamil Nadu, which held that such statements could not be used as confessional evidence in trial. Consequently, the statements against the Applicant could not substantiate the charges, as they were inadmissible for proving guilt. 4. Examination of Evidence Against Accused No. 2: The court scrutinized the evidence against Accused No. 2, which primarily consisted of call details and WhatsApp exchanges with Accused No. 1. The court found that the Applicant's role as a Clearing Agent naturally involved handling consignment documents, which did not imply knowledge of the narcotics. The court concluded that the evidence was insufficient to establish a presumption of the Applicant's knowledge of the drugs concealed in the consignment. 5. Consideration of Precedents and Legal Principles: The court considered various precedents, including the Apex Court's decisions in cases like Javed Gulam Nabi Shaikh and Ankur Chaudhary, which emphasized the importance of the right to a speedy trial and the potential for bail despite statutory embargoes under Section 37 of the NDPS Act. The court noted that prolonged incarceration without trial progress warranted consideration for bail, even in cases involving commercial quantities of narcotics. Conclusion: Given the lack of admissible evidence and the prolonged incarceration without trial progress, the court granted bail to Accused No. 2, subject to strict conditions. The Applicant was required to furnish a personal bond and comply with specific conditions, such as not tampering with witnesses, not leaving India without permission, and attending trial proceedings regularly. The court clarified that its observations were limited to the bail application context and based on the material presented.
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