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TMI Blog2022 (6) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... , when read with the stringent provisions of Section 37 of the Act, render the fundamental rights of the accused under Articles 14, 19 and 21 of the Constitution in jeopardy. Although the Court declined to quash the charges against the accused on this basis, it accepted the alternative submission that the accused should be released on bail after a certain period of incarceration, if the trial has been delayed beyond a reasonable time. The Court categorized the cases according to the punishment prescribed for the offence in question. As the applicant has been in custody for eight years already, six PWs are yet to be examined, and on the consideration of the various factors noted above, including the provision of Section 37 of the Act, as interpreted in the above judgment of the Supreme Court, it is opined that the applicant is entitled to be released on bail. It is, therefore, directed that the applicant herein be admitted to bail subject to conditions imposed - application allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 grams of heroin was kept in a separate transparent package in a white cloth, and similarly sealed and signed. The remaining stitching material was separately wrapped. The parcel contained the name of the consignor as Mr. Ashish Kanojia, 78, BlockC Duggal Colony, Khanpur, Delhi, 110062, and the consignee as Lisa Phombeh, Perry Town V, OA.A, Monrovia, Liberia, Post 1000, Liberia. E. Notices under Section 67 of the Act were issued to both the independent witnesses and their statements were taken on 09.06.2014. Two other witnesses, Mr. Shamsher Singh of ANS Express Services Pvt. Ltd. and Mr. Arjun Pal Singh of Balaji Courier & Cargo, B-7 Vasant Kunj, New Delhi, were also issued notices under Section 67 of the Act, and they made their statements on 04.07.2014 and 14.08.2014 respectively. F. Mr. Ashish Kanojia, the consignor of the parcel, was also issued a notice under Section 67 of the Act, and made a voluntary statement on 01.06.20141 G. On the basis of his statement, an information was then prepared by the IO that the parcel belonged to one Mr. Jonas Orji, who is a Nigerian national, and is a resident at House No. 363, Dhaka Johar, near Parmanand Colony, New Delhi [hereinafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mirah. Testing of a small quantity of the same with the help of the DD kit gave positive result for charas. The substance was transferred to a transparent polythene bag, and when weighed, was found to be 170 grams. N. Two samples of 25 grams each were drawn, kept in separate zip-lock pouches, which in turn were kept in white paper envelopes, and similarly signed and sealed. The remaining 120 grams of the substance was kept in a transparent packet, stitched in a white marking cloth, signed and sealed. Panchnama and test memos were prepared, which were signed by the applicant and the IO, as well as by the independent witness. O. The applicant and Ms. Sero were thereafter issued notices under Section 67 of the Act, and were asked to appear forthwith before the NCB. Ms. Sero made a statement on the same date that she was not aware of the alleged business of drug trafficking of the applicant, who is her husband. As a result, she was not arrested. The applicant made his statement before the NCB on 03.06.2014. P. Consequent upon the recovery of 200 grams of heroin from the parcel, 265 grams of heroin and 170 grams of charas from the applicant's house, and on the basis of his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been in custody for a period of 7 years 11 months and 9 days. Although his overall conduct is characterized as unsatisfactory due to punishments awarded to him on 09.02.2017 and 10.01.2019, his jail conduct during the last one year has been certified to be satisfactory. 7. No prior involvement of the applicant in any offence has been mentioned in the reply filed by the NCB to the present application. 8. It may be noted that Mr. Ashish Kanojia was not named as an accused in the chargesheet, but was subsequently arraigned as an accused pursuant to the orders of the Special Court. He was enlarged on bail within one year and, according to the Nominal Roll of the applicant, Mr. Ashish Kanojia was released on 18.11.2015. 9. As far as the trial is concerned, it appears that out of the 25 prosecution witnesses [hereinafter, "PW"] cited in the chargesheet, Mr. Ashish Kanojia has been made an accused, 4 PWs have been dropped, and 14 out of the remaining 20 PWs have been examined. Submissions 10. Mr. Adarsh Priyadarshi, learned counsel for the applicant, has made the following submissions in support of the present application:- A. Mr. Priyadarshi submitted that the applicant is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as the substances alleged to have been recovered from different packets/tubes were mixed together before drawing samples for chemical testing. He argued that the representative character of the samples was thus vitiated. In support of this contention, he relied upon the judgments of the coordinate benches of this Court in Amani Fidel Chris vs. Narcotics Control Bureau9, Charlse Howell @ Abel Kom vs. NCB10, and Mokibe MR Leepile Moses @ Patrick Umechukwu vs. Narcotics Control Bureau11. 11. Mr. Shashwat Bansal, learned counsel for the NCB, on the other hand, contested the application principally on the following grounds: A. Mr. Bansal submitted that the SCLAC judgment was expressly stated to be a one-time measure, and applicable only to the State of Maharashtra. Although the SCLAC judgment was thereafter extended to some other states by an order of the Supreme Court in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India and Others12, learned counsel emphasized that it was not extended to Delhi. B. In any event, Mr. Bansal submitted that paragraph 16 of the SCLAC judgment makes it clear that the directions given therein were not intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. He stated that the applicant and his wife also have a young child. Mr. Priyadarshi handed up several orders to the Court in which bail was granted to foreigners, including those accused of having committed offences under the Act. Analysis 13. At the outset, as noted above, even assuming in favour of the applicant that the recovery from the courier parcel cannot be attributed to him, the present case concerns recovery of commercial quantity of heroin (in addition to an intermediate quantity of charas), and Section 37 of the Act would thus be applicable. Section 37 of the Act lays down the twin tests, which must be satisfied before granting bail in such a case, in addition to the normal conditions for grant of bail under the CrPC. It provides as follows: "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 cognizable; (b) no person accused of an offence punishable for 2[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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced below:- "15- xxxx xxxx xxxx xxxx xxxx The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions: (i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused; (ii) the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications for bail in cases instituted under the Act. These orders are as follows:- a. In Manoj Kumar Singh vs. State of West Bengal & Anr.23, the applicants therein were accused of transporting 9,310 kilograms of ganja while dressed in army uniform and were also carrying firearms. The Supreme Court noted the SCLAC judgment, and the fact that the proceedings before the trial court remained pending despite several directions of the Supreme Court and the High Court. The Court released the applicants therein on bail on the ground that they have served more than seven years in judicial custody. b. In Tapan Das vs. Union of India24, the Court granted bail to an accused noting that he had been in incarceration for around four years, and that there was no possibility of completion of the trial in the near future. c. In Baba Fakruddin Sheikh @ Fakru25, cited by Mr. Priyadarshi, this Court denied bail, coming to a finding that a commercial quantity of contraband had been recovered and Section 37 of the Act would thus be attracted. This Court rejected the applicant's contention that the recovery from the applicant alone (and not from other co-accused) should be taken into account, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resence of delay in trial in a case, the Special Court was still free to exercise its power to grant bail under Section 37 of the NDPS Act. Furthermore, if the Special Court also retained the power to cancel bail if the accused was found to be misusing the same. The directions were certainly not, as the learned APP has submitted, meant to only apply in the case therein, but were directions that were to be followed by Courts in all cases pertaining to NDPS wherein the accused had been subjected to prolonged delay in their trials." d. The view taken by this Court in Atul Aggarwal35 and Anil Kumar @ Nillu36 has been followed in a recent judgment of this Court in Ebera Nwanaforo vs. Narcotics Control Bureau37 and connected matter. After a detailed discussion of the judgments of the Supreme Court inter alia in SCLAC, and Tofan Singh38, as well as the judgments of this Court inter alia in Atul Aggarwal39 and Anil Kumar @ Nillu40, the Bench concurred with the view taken in Anil Kumar @ Nillu. The Court noted that neither Atul Aggarwal41, nor Anil Kumar @ Nillu42 was carried in appeal by the prosecuting agencies. The applicants therein, having been incarcerated for a period of more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that dilatory tactics were being adopted by the accused. The bail application was, therefore, dismissed. In the present case, in contrast, there is no assertion or indication in the Status Report that the accused has delayed the proceedings of the trial. Therefore, no case is made out of dilatory tactics on the part of the applicant, which would furnish a ground to make an exception from the principles laid down in the SCLAC judgment, and followed by this Court inter alia in Atul Aggarwal55, Kartik Dangi56, Anil Kumar alias Nillu57 and Ebera Nwanaforo58. 22. As far as the legality of the sampling procedure is concerned, having regard to the judgment of this Court in Anthony Umeh59, and the other judgments cited by Mr. Bansal on this point, I accept his contention that this question cannot be adjudicated at this stage, and it has to be determined at the end of the trial. However, to the extent that the prosecution relies upon the extra judicial confessions of the accused and of another co- accused, recorded under Section 67 of the Act, the judgment of the Supreme Court in Tofan Singh60 holds that such confessions are inadmissible in evidence. This point has been considered in sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, unless exempted by the Special Court in exceptional circumstances. The applicant will not be released on bail in the absence of such a certificate of assurance. E. The applicant will reside at the address mentioned in the chargesheet which has been verified by the IO. In the event of any change in his address, the applicant will give prior information of the same to the IO and the Special Court. F. The applicant will give his mobile number to the IO, and ensure that the mobile number is kept in working condition, and is operational at all times. G. The applicant will drop a pin on Google Maps to ensure that his exact location is available with the IO at all times. H. The applicant will not tamper with the evidence, directly or indirectly, in any manner. I. The applicant will not contact any of the prosecution witnesses or act in any other manner prejudicial to the trial. J. In the event any further offence is registered against the applicant during the period he is out on bail, the NCB is at liberty to apply to the Special Court for cancellation of the bail granted to the applicant. K. The Special Court will also be at liberty to cancel the bail of the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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