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TMI Blog2021 (9) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... d. He has not committed any offences as alleged. He has been falsely implicated in the matter without any basis. He was apprehended on 20.08.2020 and since then he is in judicial custody. 4. Learned counsel submits that, it is the contention of the prosecution that NCB received credible information regarding a parcel lying in the foreign post office, at Chamrajpet, Bengaluru, suspected to have containing MDMA. Accordingly, the NCB police visited the post office and in the presence of two panchas, inspected the parcel lying there, unclaimed. The parcel was found to be booked from Deutsche post addressed to one Amitha Radhakrishnan, 28/B, (F-3), 5th Main, 8th Cross, BTM 2nd stage, NS playa, Karnataka, Bengaluru - 560076, India. On enquiry about the details of the sender, it was revealed by the post master that the same was booked from Frankfurt, Germany. When the parcel was opened, polythene covers were found. There were several layers of polythene covers, wherein, grey colour rectangular tablets weighing 69 grams in one pouch and light brown colour oval shaped tablets weighing 90 grams in another pouch were found. The appearance and texture of the substance was that of MDMA. The gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution failed to place even prima facie materials against the petitioner. The petitioner is a student aged 23 years, who is having permanent place of residence in the address mentioned in the petition. He is not having any criminal antecedents and is ready and willing to abide by any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition. 8. Per contra, learned Central Government Standing Counsel opposing the petition submitted that a credible information was received regarding the unclaimed parcel in the foreign post office and therefore, NCB had mounted surveillance about the identity of the person who may come to collect the parcel. The petitioner after suspecting about the surveillance had not gone to the post office to collect the parcel, even though, it was he who booked the parcel in the name of Amitha Radhakrishnan. Admittedly, the petitioner and Amitha Radhakrishnan were residing together in live-in relationship. Taking advantage of the situation, the petitioner used to book the parcels in her name. When the parcel was lying unclaimed, the same was seized under the seizure mahazar, after following the procedures as contemplate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onceal his bad deals. The International Mobile Equipment Identity (IMEI) details collected by the Investigating Officer discloses that since 18.08.2020, the petitioner has changed his mobile and therefore, IMEI number also changed. This shows the guilty mind of the petitioner and prima facie shows his intention to cause disappearance of the evidence. At this stage, prima facie materials are placed before the Court which are sufficient to deny bail to the petitioner. 11. The learned CGSC further submitted that unless, the twin conditions specified under Section 37 of the NDPS Act are satisfied, the petitioner is not entitled for bail. He relied on the decision of the Hon'ble Apex Court in Union of India Vs Ram Samujh and another (1999) 9 SCC 429, State of Kerala and Others Vs Rajesh and Others (2020) 12 SCC 122 and the judgment of High Court of Punjab and Haryana in Lakhwinder Singh Vs Union of India and Others 2011 SCC Online P & H 6671 and contended that the twin requirements provided under Section 37(1)(b) of the NDPS Act is required to be complied with, if the accused is to be enlarged on bail. The statement of objects and reasons for introducing the bill for amendment of NDPS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above would indicate that there is nothing on record even to probabalise the involvement of the present petitioner in commission of the offences. Under such circumstances, even if the twin conditions mentioned under Section 37(1)(b) of the NDPS Act is to be applied, a finding could be recorded that there are no reasonable grounds for believing that he is guilty of such offences and since the petitioner is not having any criminal antecedents, it could be opined that there is no likelihood of he committing any offence, while on bail. Therefore, it is his contention that the petitioner is entitled to be enlarged on bail. 14. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is: "Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?" My answer to the above point is in 'Affirmative' for the following: REASONS 15. It is the contention of the prosecution that a credible information was received about a parcel lying in the foreign post office, Chamrajpet, Bengaluru, suspected to have containing MDMA and when the parcel was opened, it contained in all 159 grams of MDMA, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 support of the same, the prosecution is relying on two bank challans found in the house, where the petitioner was residing, according to which, on 24.01.2017 and on 25.01.2017, a sum of Rs. 36,500/- and Rs. 49,500/- respectively credited in Karur Vysya Bank, where Amitha Radhakrishnan was having the account. The statements of the bank accounts relating to the petitioner and Amitha Radhakrishnan were collected, wherein, it is found that various amounts ranging from Rs. 1,500/- to Rs. 10,000/- were being deposited regularly to the account. The total balance in the credit of the account in Kotak Mahindra Bank is ranging from Rs. 1,45,000/- to Rs. 1,60,000/-. It is pertinent to note that even though, it is contended that the petitioner used to book the consignment through VICKR app from foreign countries and used to pay the consideration through BIT coin, the same is on the basis of the statements of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellation of bail. 19. In J Kannan (supra) the co-ordinate Bench of this Court, relying on the decision in Ankush Kumar @ Sony (supra) enlarged the accused on bail. 20. In Ram Samujh (supra), the Hon'ble Apex Court considered the requirement of Section 37(1)(b) of the NDPS Act, in light of the legislative intent to achieve the object mentioned in the statement of objects and reasons for introducing the bill for amendment and held in paras 5 to 8 as under: "5. The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus: "37. Offences to be cognizable and non- bailable: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973: (2 of 1974) (a) every offence punishable under this Act shall be cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine," 8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 of the NDPS Act cannot be held as unconstitutional. 23. From these various verdicts of the Hon'ble Apex Court and the High Court of Punjab and Haryana, it is clear that the twin requirements under Section 37(1)(b) of the NDPS Act, i.e., (i) there are reasonable grounds for believing that the accused is not guilty of such offence and that (ii) he is not likely to commit any offence while on bail, are to be satisfied while deciding the bail application filed by such accused. 24. 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. Even though, prima facie it is shown that the petitioner and Amitha Radhakrishnan were residing together in the address mentioned in the parcel, its contention that (i) the bank challans in question evidence the fact for having deposited the amount by the petitioner in the account of Amitha Radhakrishnan or (ii) the petitioner was maintaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil and Sessions Judge and Special Judge for NDPS, Bengaluru, on obtaining the bond in a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) with two sureties for the likesum to the satisfaction of the jurisdictional Court, subject to the following conditions: a). The petitioner shall not commit similar offences. b). The petitioner shall not threaten or tamper with the prosecution witnesses. c). The petitioner shall appear before the Investigation Officer or the Court as and when required. d). The petitioner shall mark his attendance before NCB, Bengaluru, once in 15 days i.e., on every 1st and 3rd Sunday between 10.00 a.m. to 5.00 p.m. till conclusion of the trial. e) The petitioner shall not leave the jurisdiction of the Trial court without its prior permission, till conclusion of the trial. If in case, the petitioner violates any of these conditions, the prosecution will be at liberty to move the Trial Court seeking cancellation of bail. On furnishing the sureties by the petitioner, the Trial Court is at liberty to direct the Investigating Officer to verify the correctness of the addresses and authenticity of the documents furnished by the petitioner and the sureties a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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