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TMI Blog2024 (11) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... o clear the consignment is not supposed to know an exact material which is found in the said consignment though such bills required to be mentioned about it. Admittedly such consignment was received from a foreign country and it requires customs clearance since the customs authorities suspected some foul play, they alerted the DRI and accordingly raid was conducted - Applicant was not present when the consignment was opened and search was carried out. It was Accused No.1, who was present during the search of the said consignment and he was responsible for clearing the said consignment though claimed for and on behalf of Accused Nos.2 and 4. Thus the material which has been collected by the complainant qua the present Applicant is not enough to sufficiently corroborating the case and existence of the call details and forwarding of the bills to Accused No.1 cannot be considered as presumption of the knowledge of the Applicant about the drugs concealed in the said consignment. In the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. [ 2022 (8) TMI 152 - SUPREME COURT] , the Apex Court has observed that prolong incarceration and inordinate delay engaged in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, APP for State-Respondent No. 2 JUDGMENT 1 Applicant who is Accused No.2 in the complaint filed by respondent no.1 before the Special Court, preferred the present application for bail under Section 439 of Cr. PC. 2 Heard Dr. Sujay Kantawala for applicant, Mr. Thakker Ruju for Respondent no.1 and Mr. C. D. Mali, APP for State. 3 Learned Counsel for the Applicant would submit that present Applicant/ Accused No.2 was working as a Clearing Agent and that he is related to Accused No. 1. He submits that the Accused No.2 only help the Accused No.1 in clearing some consignment. However, he had no connection at all with respect to the drugs which are found in the said consignment. 4 He submits that Accused No.2 is alleged to have transported the said drugs and thus except the statements recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) there is no corroborative material to implicate present Applicant with the said offence. 5 Learned Counsel for the Applicant would further submit that though complaint is filed by NCB on 2nd February 2021 and cognizance of it was taken by the concerned Special Court on 18th April 2022, there is no progress in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Apex Court in Special Leave to Appeal (Crl.) No.4648 of 2024. 3. Judgment in case of Dheeraj Kumar Shukla Vs. State of Uttar Pradesh passed by Apex Court in Special Leave to Appeal (Crl.) No.6690 of 2022. 4. Judgment in case of Mahmood Kurdeya Vs Narcotic Control Bureau passed by Apex Court in Criminal Appeal No.1570 of 2021. 5. Judgment in case of Mohd. Muslim alias Hussain Vs State (NCT of Delhi) passed by Apex Court, Reported in 2023 SCC OnLine Supreme Court 352. 6. Judgment in case of Surjit Singh @ Kala Vs State of Punjab passed by High Court of Punjab and Haryana on 09.11.2023 in CRM-M No.32558 of 2023. 7. Judgment in case of Vijay Mohan Pawara Vs. The State of Maharashtra passed by High Court of Bombay on 24.06.2024 in Bail Application No.433 of 2024. 8. Judgment in case of Gudipati Subramaniam Vs. Union of India and Another passed by High Court of Bombay, reported in 2024 SCC Online Bom 1350. 9. Judgment in case of Shashikant Prabhu Vs. Harshad Chandrakant Gawde @ Harry passed by High Court of Bombay on 21.12.2020 in Bail Application No.422 of 2024. 12 Perusal of the complaint filed before the Special Court would clearly disclose that a container bearing No.INKU226795 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping and Logistics Services. He then discloses that Accused No.4 contacted him somewhere in June 2019 enquiring about clearance of import of Mulethi (Liquorice Roots) from Afghanistan. Accused No.2/Applicant agreed to clear the imported consignments of Accused No.4. 15 Mobile phones of present Applicant were attached and CDR/SDR were called wherein it is found that Accused Nos.1 and 2 were in contact with each other and even the documents were exchanged on mobile phones. 16 Complainant further submits that Accused Nos.3, 4 and 5 were then arrested. However, Accused No.4 expired after the complaint was filed before the Trial Court. 17 It is there for clear that a case of the complainant though show that a contraband was found in the said consignment for which Accused No.1 has acted as a Clearing Agent, the involvement of Accused No.2 is on the basis of statement made by Accused No.1 under Section 67 of NDPS Act. 18 Similarly the contention of the complainant as far Accused No.2/Applicant is concerned is again based on statement under Section 67 of NDPS Act. It is no doubt true that there are call details and WhatsApp records which show that Accused No.2/Applicant was in contact with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve his fees for the purpose of clearing of the consignment. The transactions which have been pointed out on behalf of the respondent are only with regard to charge of fees with regard to clearance of the consignment. Such amounts are only in few thousand and not having any suspicion with regard to the contention of dealing in drugs. 24 The Clearing Agent or a person who is facilitating the agent to clear the consignment is not supposed to know an exact material which is found in the said consignment though such bills required to be mentioned about it. Admittedly such consignment was received from a foreign country and it requires customs clearance since the customs authorities suspected some foul play, they alerted the DRI and accordingly raid was conducted. 25 Applicant was not present when the consignment was opened and search was carried out. It was Accused No.1, who was present during the search of the said consignment and he was responsible for clearing the said consignment though claimed for and on behalf of Accused Nos.2 and 4. Thus the material which has been collected by the complainant qua the present Applicant is not enough to sufficiently corroborating the case and exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act could be considered. 30 In the case of Dheeraj Kumar Shukla (supra) the Apex Court granted bail to the Accused even though he was found with the commercial quantity and since there is no progress in the trial. 31 In the case of Mohd. Muslim alias Hussain (supra) the Apex Court while dealing with Section 37 of the NDPS Act observed that the court would look at the material in a broad manner and reasonably see whether the Accused s guilt may be proved. It does not call for meticulous examination of the material collected during investigation. 32 Coming back to the matter in hand, it is no doubt true that a huge commercial quantity of heroin was found in the container, but except statement under Section 67 of NDPS Act which is otherwise not admissible in evidence as far as admissions/ confessions of the present Applicant are concerned, there is hardly any corroborative evidence. Thus the provisions of Section 37 of the NDPS Act would not be considered as an emba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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