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TMI Blog2021 (10) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... greater presumption that carrying large quantities of narcotics is a crime and that it would entail consequences in law which could be harsh and irrevocable. The quantity recovered from the Petitioner is commercial quantity. For the said reasons, the Petitioners case doesn t fall within the twin parameters of Section 37 of the NDPS Act - this Court is not inclined to grant bail to the Petitioner. Petition dismissed. - BAIL APPLN.351/2020, CRL.M.As. 12533-35/2021 & 13943/2021 - - - Dated:- 29-9-2021 - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD, J. Petitioner: Mr. Raghav Sharma, Ms. Mitali Gupta, Mr. Salvador Santosh Rebello, and Ms. Anukriti Dua, Advocates Respondent: Mr. Ajay Digpaul, CGSC with Mr.Kamal R Digpaul, Advocate. ORDER 1. The present petition is filed under Section 439 Cr.P.C praying for regular bail in Sessions Case No. 267/ 2018 before the Special Judge, NDPS, Patiala House Court for offences under Section 8, 21, 27A, 29 NDPS Act. 2. Before delving into the bail application, it is necessary to briefly lay down the factual summation of the prosecution s case, they are stated as hereinunder-: a) Briefly put the story o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced her to his friend, Oba from Delhi who later became her boyfriend and told her that he was engaged in the Cloth Business. She stated that Oba introduced her to Charles Ezih @ Papa and Moses Henry. It is said that she further stated Charles Ezih, Moses knew the Petitioner was traveling from Delhi to Mumbai and that Moses gave a bag to her at Charles house in Delhi which was to be given to Cosmos on her arrival in Mumbai. She stated that she did not know the contents of the bag given by Moses to her. It is further stated that Petitioner gave material details such as addresses of the persons which she mentioned in her statement and the same was recorded, reduced to writing and was signed by the Petitioner. e) Based on the details about Charles Ezih given in the statement of the Petitioner, steps were taken for conducting search in the residence of Charles Ezih. A team headed by Pradeep Singh, IO formed a team with an independent witness to conduct a search operation at the residence of Charles Ezih. Charles Ezih on being questioned about the 600gms of Methamphetamine found in possession of the Petitioner, Charles Ezih confirmed that Moses Henry had given the Methamphetamine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly through the medical records vide order dated 24.8.2020 granted Medical Bail to the Petitioner for a period of 45 Days. This Court vide order dated 12.10.2020 extended the interim bail of the Petitioner by another two months. This Court on 10.12.2020 re-extended the bail of the Petitioner by two months. 7. Heard both parties and seen the record. Mr. Raghav Sharma, Ld. Counsel appeared for the Petitioner. Mr. Ajay Digpaul, Ld. Counsel appeared for the Respondent State opposing the bail. 8. The learned counsel for the petitioner contends that the arrest of the petitioner is contrary to the provisions of the NDPS Act. He states that if the secret information was received by the NCB Officers that a lady is carrying narcotics, despite the information no lady officer accompanied the NCB officials. He further submits that ultimately the petitioner was searched by a lady railway police official. He further states that the incident took place on 22.02.2018, the panchnama was prepared on 22.02.2018 and signed by two lady police officials i.e. Suman Lata and Women Constable Sushila. But, they were examined only much later. He therefore states that this is a violation of Section 67 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there. He therefore states that the Courts are only considering the bail of the petitioner and there is no violation of any requirement under Section 67 of the NDPS Act. He would further contend that the judgment of Arif Khan (supra) relied on by the learned counsel for the petitioner has been clarified by a Division Bench of this Court in Nabi Alam v. State (Govt. of NCT of Delhi), 2021 SCC Del 3055. 12. Mr. Digpaul submitted that the Petitioner was found in the possession of 600 Gms. of Methamphetamine which is a commercial quantity. This was recovered from her baggage where it was kept clandestinely in a bag marked as Baby Carrier . He argued that the punishment prescribed under the provisions the Petitioner is charged with is minimum rigorous imprisonment for ten years which could be extended till 20 years. He argued that the NDPS Act is a special law with a uni-directional objective to curb the menace of drugs and narcotics in the country and society and therefore the trite criminal law principles of presumption of innocence and prosecution to bear the burden of proof stands nullified in the face of express provisions in Section 35 and Section 54 of NDPS Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. There appears to be a prima facie evidence that the Petitioner was in the possession of 600Gms of Methamphetamine at Nizamuddin Railway Station on 22.2.2018. 15. The reliance made by the learned counsel for the petitioner on Harbeer Singh (supra) is misplaced and would not apply at this juncture. He contend that the delay in recording the statement under Section 161 Cr.P.C need not to be considered at this juncture and it is a matter of trial. In any event, even the notice to the witnesses were given on the very same day and they were asked to give their statements on 23.03.2018. 16. The learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court on para 20 of the judgment of the Supreme Court in Arif Khan (supra). The said para reads as under: 20. Their Lordships have held in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609]. 19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act. (emphasis supplied) 19. A three-judge bench of the Supreme Court in Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549 , succinctly referred to what the limitations on the exercise of power under Section 37 NDPS are as follows: 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... juxtaposition with the arguments advanced, it is clear that the Petitioner on 22.02.2018 was found in the possession of Methamphetamine and the same has been verified by conducting a chemical test of the sample of the seized material. The disclosure statement has lead to the arrest of two Nigerian accused in whose possession narcotics was found. It has also been discovered by the NCB that these two accused were living illegally in India on fake passports. Material on record discloses that the petitioner is a part of a network which deals in supply/sale of Narcotics. This is evident from the subsequent recoveries of Narcotics from foreign nationals. The clean tidy track record of the Petitioner does not absolve her from being in possession of 600 Gms of Methamphetamine. An uneducated person may claim no knowledge of the substance found in his/her possession and may raise a defense of the substance being planted on them but being a highly educated person, there is greater presumption that carrying large quantities of narcotics is a crime and that it would entail consequences in law which could be harsh and irrevocable. The quantity recovered from the Petitioner is commercial quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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