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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 ..... n the name of M/s. Sagar Impex. The intelligence further indicated that the contraband goods were concealed in various handicraft items like ladies‟ purse, Heena powder, imitation jewellery etc. b) On examination, eight corrugated boxes were found in three pallets. 24 boxes found were removed from the pallets and on weighment, huge variation was noticed in the weights of other cartons and cartons bearing nos. 18-21. Each carton was found to contain 38 cloth bags with each weighing 1.02 kgs and having the markings of Neha Rachni Mehendi. On opening these bags, a white colour crystal powder, which appeared to be ketamine, was found inside carton nos. 19, 20 and 21. The net weight of powder in 38 bags of box no. 19 was found to be 37.980 kgs, in 38 bags of box no. 20 was found to be 38.000 kgs, and in 38 bags in box no. 21 was found to be 38.000 kgs. Therefore, the total net weight of white crystal power found was 151.980 kgs. c) In absence of any licence or transport authority, the recovered white crystal powder weighing 151.980 kgs was seized under the NDPS Act with all its packing material and other goods used for concealment of the ketamine. Representative samples in tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band substances. He stated that Chotu used to deliver the procured the contraband substances to the Petitioner herein. He accepted the panchnama relating to the 151.980 Kgs of Ketamine which was recovered and seized at Air Cargo Complex, IGI Airport, New Delhi. He stated that the seized contraband was procured by him from one Pehalwan and the consignment was packed in gunny bags and was kept in his godown at 755/2/1 Mundka village, Delhi-41 and on the next day the consignment was sent to the Petitioner herein at his Kundan Nagar godown through Chotu. He stated that the consignment was packed in pouches and were marked as "Neha Rachni Mehndi‟. He stated that the packing was done at A-36, Kundan Nagar by the Petitioner herein and Chotu. He stated that the petitioner herein had arranged for concealing material like Mehndi pouches, imitation jewellery, bangles, bindis, and the consignment was concealed with these materials. f) Statement of the Petitioner herein under Section 67 of the NDPS Act was recorded on 20.07.2012 wherein he stated that in the year 1996-97, he joined United Cargo where was engaged in cargo clearance. He stated that he worked at United Cargo for 2-3 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signment. He also stated that he also arranged for export of dark coloured bricks of Hashish weighing in excess of 1 Kg wrapped in plastics and concealed in a consignment of handicrafts items. He stated that the consignment of 151.980 kgs of Ketamine seized from Air Cargo Complex at IGI Airport at New Delhi on 18/19.07.2012 was booked by him through one Parwej Ansari of Star Cargo Movers of Mahipalpur, New Delhi. g) On 03.09.2012, statement of one Raju Gupta, S/o Shri R.N Gupta, Sales executive of M/S DelEx Cargo India Pvt. Ltd. 1110, having its officer at 11th floor, Hemkunt Chambers, 89, Nehru Place, New Delhi, was recorded under section 67 of NDPS Act wherein he stated that in August 2011, the Petitioner herein had approached their company for clearance of one export consignment of M/S Shiv Jyoti Sales Corp. declared to be handicraft items, Heena Powder and incense powder & stick which was consigned to Surinder Singh Dhillon, Vancouver Canada. He stated that since they did not have their own CHA licence, the work relating to the export clearance of the said consignment was handed over to M/s Clare Freight India Pvt. Ltd. He stated that the said consignment was cleared under S/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court which was dismissed by the learned ASJ (South) Saket Courts vide Order dated 28.10.2016. l) Third bail application of the Petitioner herein was dismissed by the learned ASJ (South) Saket Courts vide order dated 08.05.2019. m) This Court vide Order dated 02.07.2020 granted interim bail to the Petitioner for a period of 45 days on medical grounds which was further extended till 31.10.2020. n) Fourth bail application of the Petitioner was dismissed by the learned ASJ (South) Saket Courts vide Order dated 13.04.2021. o) This Court vide Order dated 27.05.2021 granted interim bail to the Petitioner for a period of 90 days on medical grounds. The Petitioner has now approached this Court by filing the instant petition for grant of regular bail. It is to be noted that the Petitioner herein surrendered before the hearing on grant of regular bail commenced. 3. Mr. Colin Gonsalves, learned Senior Advocate appearing for the Petitioner, has made the following submissions: a) Mr. Gonsalves submits that the Petitioner has been in custody since 09.07.2012, which invariably means that the Petitioner has been an undertrial for over nine years. He relies on the judgement of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly pronounced, the Ld. Trial Court had not been able to take the same into consideration while hearing the bail application of the Petitioner herein. d) Mr. Gonsalves, learned Senior Advocate, submits that the complaint does not paint the Petitioner as a kingpin and that there is no element of conspiracy. He submits that the Petitioner herein was merely a forwarding agent and was not aware of the contraband material being concealed in the packages. He submits that the Petitioner is being falsely implicated in the instant case, and that no material, either narcotic substances or concealing material that was used to cover the substances, has been recovered from the office or the home of the Petitioner and that the same has been confirmed by witnesses as well as the IO. He further submits that only three mobile phones were seized from the Petitioner‟s residence as per the arrest memo dated 20.07.2012, and that a fourth Blackberry phone was added to this by the DRI in order to fabricate incriminating evidence against the Petitioner. e) Mr. Colin Gonsalves, learned Senior Advocate appearing for the Petitioner, argues that chargesheet has been filed, along with the supplement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Sr. SPP submits that the admissions of the Petitioner and his co-accused have resulted in the seizure of one more consignment of 300 kgs of ketamine dissolved in rose water at the godown premises. He states that the Petitioner was also actively involved in arranging fake IECs without the knowledge of person owning the said IEC and related documents for export in of the contraband. 6. Mr. Aggarwala, the learned Sr. SPP, submits that the contention of the Petitioner that the trial is taking an unduly long time is false. He states that there is no delay on the part of the prosecution and that this Court is assured that the trial will be concluded expeditiously. In view of these submissions, the learned Sr. SPP vehemently opposes the grant of bail to the Petitioner herein. 7. Heard Mr. Colin Gonsalves, learned Senior Advocate appearing for the Petitioner, Mr. Satish Aggarwala, learned Senior SPP appearing for DRI, and perused the material on record. 8. Grant or refusal of bail, in a case involving commercial quantity of contraband substances under the NDPS Act, is governed by Section 37 of the NDPS Act. The same is reproduced as under: "37. Offences to be cognizable and non-ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence....." (emphasis supplied) 10. Similarly, in Union of India v. Rattan Mallik, (2009) 2 SCC 624, the Supreme Court had held that while considering an application for grant of bail under the NDPS Act, the Court was not called upon to record a finding of "not guilty", but to see whether there was any reasonable ground for believing that the accused was not guilty of the offence(s) that he was charged with and further that he was not likely to commit an offence under the said Act while on bail. The relevant portion of the aforementioned judgement reads as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of releasing the accused on bail." (emphasis supplied) 11. In the instant case, the quantity of contraband recovered is 151.980 kgs of ketamine, which is a commercial quantity. In Gurdev Singh v. State of Punjab, (2021) 6 SCC 558, the Supreme Court had discussed the deleterious impact 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. 12. However, it is also pertinent to note that the Petitioner herein was arrested on 20.07.2012. It has been nine years since he has been in custody. While remaining conscious of the fact that the gambit of drug trafficking must be deterred with stringent punishments, and that those who indulge in such nefarious activities do not deserve any sympathy, Courts must also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis supplied) 14. As per Direction (iii) in the aforementioned judgement, where an undertrial accused has been charged with offence(s) under the NDPS Act which is punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, then such an undertrial is to be released if he has been in jail for not less than five years. In the instant case, the Petitioner has been charged with offences punishable under Sections 9A, 21, 23, 25A of the NDPS Act. With minimum imprisonment of 10 years as stipulated under these offences, an undertrial is to be released if he has been in jail for not less than five years. However, in the case herein, the Petitioner has been in custody for more than 9 years. Therefore, the petitioner is squarely covered by the aforementioned judgment. 15. Applying the law that has been laid down by the Supreme Court in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (supra) and flowing from Section 37 of the NDPS Act, this Court is of the opinion that the instant case is fit for grant of bail. This Court is, therefore, inclined to grant bail to the Petitioner herein, subject to the following condition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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