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TMI Blog2021 (12) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... of narcotic drugs on society, and how the menace of drug addiction did not only have the ability of destroying the life of just one individual, but how it could destroy the lives of generations to come. Therefore, the consequences of dealing of drugs and drug abuse can be experienced across the board, from causing economic issues to societal disintegration. The purpose of enacting the NDPS Act was to curb this menace, and this purpose must be borne in mind while considering the grant of bail pertaining to the NDPS Act. Deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution under Article 21, and is, therefore, unconstitutional to its very core. In such cases, in absence of the pronouncement of conviction, the process itself becomes the punishment. Nine years cannot be said to be a short period of time. This Court is of the opinion that the instant case is fit for grant of bail - bail is granted subject to conditions imposed - application allowed. - BAIL APPLN. 2477/2021 - - - Dated:- 21-12-2021 - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD Petitioner Through: Mr. Colin Gonsalves, Senior Advocate wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led. d) Consequent to the recovery, search was conducted at the premises of the alleged syndicate on 19.07.2012, and statements of Paramjit Singh Gulati and the Petitioner herein were recorded on 19.07.2012 and 20.07.2012, respectively under Section 67 NDPS Act. e) In his statement under Section 67 NDPS Act, Paramjit Singh Gulati stated that he worked as a hawala operator between Delhi and Jallandhar. He stated that he was introduced to one Vicky by an insurance agent Puneet, who offered him a deal to send him ketamine from Delhi to Canada through air cargo. It is stated that Gulati accepted the offer and contacted his old friend, Goldy, for forwarding and Customs clearance. It is stated that Goldy introduced him to the Petitioner herein who is a Customs House Agent (CHA). It is stated that the Petitioner herein agreed to be a part of the deal and it was decided that the contraband would be, provided by Paramjit to the Petitioner herein at his house and after packing the same, it was to be exported. It is stated that the export documents were to be provided by the Petitioner herein, and for his assistance, the Petitioner herein was paid a sum of ₹ 3,00,000/- per c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough PPG CFS Delhi. He stated that one Kulwinder Singh @ Goldy, who earlier used to work with him in the freight forwarding business, introduced him to Paramjeet Singh Gulati, who told him that he exported various narcotic substances like Ketamine, Hashish, etc. He stated that he joined Paramjeet Singh Gulati in exporting narcotic substances. He stated that Paramjeet Singh Gulati asked him to make arrangements for export of various narcotic substances, including Ketamine, Hashish etc, by arranging freight forwarding and custom clearance at the port of export in Delhi. He stated that Paramjeet Singh Gulati used to send Chotu with the narcotic substances that were to be exported and also instructed him to hand over genuine packets which were meant for export to Chotu who would conceal the narcotic drugs either in the packets provided by him or would substitute some of the packets with packets of similar packing containing narcotic drug like Ketamine, Hashish etc. He stated that Paramjeet Singh Gulati used to pay him ₹ 2 lakhs to ₹ 3 lakhs per shipment of up to 100 Kgs. of Ketamine. He stated that his role was to arrange concealing material, their packaging with Ketamine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stated that during November 2011, the Petitioner herein once again approached their office for clearance of export consignment of Readymade Garments of M/s R.J. Exports consigned to M/s Meralin Procures SDN DND, Malaysia. He stated that the said consignment was delivered under three shipping bills, No. 5947518, 5947554 5947558, all dated 21.10.2011 and, DelEx House B/L no. ZIM-DEL/TKL/00189/11-12 dated 09.11.2011 and Master BA No. 21M-DEL-RKL/0152/11 dated 09.11.2011. The payment of ₹ 41,102/- towards sending the export consignment was received from the Petitioner herein through a Cheque bearing No. 000003 dated 30.11.2011 issued from his own company M/s Signature 360. He further stated that during December 2011, the Petitioner herein once again approached their company for clearance of export consignment of mix food items to be exported by M/s. Sager Impex which was consigned to M/s Shri Ganesh Net, Hong Kong, this consignment was cleared under shipping bill No. 6556767 dated 07.12.2011, DelEx House B/L no.OLX/DEVHKG/00206/11-12, dated 14.11.2012 and Master B/L no. WSAA11-D/HKD/0478, dated 26.12.2011. The bill amount of ₹ 45,271/- in respect of the said consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner herein is entitled to bail after five years of remaining an undertrial, i.e. half of the minimum punishment prescribed under the statute. Mr. Gonsalves argues that the Ld. Trial Court, while considering the bail application of the Petitioner herein, had failed to account for the law laid down by the Supreme Court. He further states that the continued incarceration of the Petitioner herein is a gross violation of his right to life and personal liberty under Article 21 of the Constitution of India. b) The learned Senior Advocate appearing for the Petitioner further submits that the statement which was recorded on behalf of the Petitioner under Section 67 of the NDPS Act cannot form the basis for the incarceration of the Petitioner. He states that other than the disclosure statements of the Petitioner as well as co-accused/Paramjit Singh Gulati, there is no material available against the Petitioner. Mr. Gonsalves relies on the judgement of Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31 to substantiate the contention that mere statements of the accused recorded under Section 67 of the NDPS Act have no evidentiary value and, therefore, are inadmissible. He furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. Mr. Gonsalves informs this Court that there are more than 80 witnesses that are to be examined, and that only 42 witnesses have been examined by 13.04.2021, with the examination of 8 witnesses being deferred. He states that, therefore, it is expected that the trial will take another few years to conclude. He states that no useful purpose will be served if the Petitioner is kept in continued judicial custody. Furthermore, he states that the probability of the Petitioner fleeing from justice does not exist as he has roots in society and he is the sole breadwinner of his family, including his wife, children, aged parents and an unmarried sister. 4. Per contra, Mr. Satish Aggarwala, learned Senior SPP appearing for DRI, contends that the quantity that has been recovered, i.e. 151.980 kgs of ketamine hydrochloride, is a commercial quantity. He submits that in these circumstances, with the charges already being framed and the order of framing of charges having attained finality, the bar of Section 37 of the NDPS Act applies. He informs the Court that this Court has already rejected the bail applications of the Petitioner herein as well as the coaccused/Paramjit Singh Gulati on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.] 9. A reading of Section 37 of the NDPS Act indicates that bail can be granted only when there are reasonable grounds for believing that the accused is not guilty of an offence and that he is not likely to commit any offence when released on bail. The parameters for grant of bail to an accused have been laid down in a number of judgements of the Supreme Court. In Collector of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on reasonable grounds . 13. The expression reasonable grounds has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with no end in sight. Deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution under Article 21, and is, therefore, unconstitutional to its very core. In such cases, in absence of the pronouncement of conviction, the process itself becomes the punishment. Nine years cannot be said to be a short period of time. 13. The Supreme Court, while deciding a petition pertaining to the delay in disposal of cases under the NDPS Act, had issued certain directions, subject to general conditions, in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) which have been reproduced as follows: (i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of ₹ 1,00,000/- with two sureties of the like amount, one of them should be the relative of the petitioner, to the satisfaction of the Trial Court; b) The petitioner is directed to deposit his passport with the Trial Court. c) The Memo of Parties shows that the petitioner is residing at R/O 178, West Guru Anand Nagar, New Delhi- 110092. The petitioner is directed to reside at the same address. In case of any change of address, the petitioner is directed to inform the same to the Investigating Officer; d) The petitioner shall report to the concerned Police Station twice in a week, that is, on every Wednesday and Friday at 10:30 AM, and the police is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities; e) The petitioner shall not leave NCT of Delhi without the prior permission of the trial Court; f) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times; g) The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner; h) In case it is established that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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