Regular bail application under Sections 8/21/23/29 NDPS Act by a consignee of a parcel containing 760 grams heroin recovered during controlled delivery. Court found sufficient prima facie evidence including WhatsApp chats and independent witnesses, applied Section 37 rigours, and dismissed the bail application.
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CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
O R D E R
% 14.08.2024
i. On 19.01.2022, on the direction of Director General of NCB u/s 50 of NDPS Act, 1985, controlled delivery of a parcel Airway bill no1Z0559A50466482570 suspected to contain to Narcotics Drugs was carried out. During the search of the said parcel 760 grams of heroin was recovered at UPS Express Pvt Ltd DCSC cargo Terminal 3 next to Haj Terminal, Air cargo complex IGI airport New Delhi and the recovered contraband was seized as per law in presence of independent witness.
ii. That the parcel Airway bill No-lZ0559A50466482570 was sent by AbdereahamaneAlimani Marina, Dubai and receiver of parcel was mentioned as ‘ Hoti Lal Pandey R/o House No. N-36, Shree Radha Florence, Vrindavan, Mathura, Uttar Pradesh 281121 Agra, India’ .
BAIL APPLN. 1836/2024
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iii. On 21.01.2022, believing that the present applicant was the consignee of the said parcel as the address mentioned on the parcel was of the applicant, it was decided to conduct the controlled delivery operation at the above said address at Mathura. That on 21.01.2022, during controlled delivery operation dummy parcel was received by the applicant. Thereafter, the applicant was apprehended and arrested on 21.01.2022.
It is further contended that the mention of $500 in the WhatsApp chats is not true to the extent that the said chats neither pertains to the applicant nor it was recovered from the mobile phone of the applicant. Further, it is submitted that the applicant was going to be a consultant for investment in India and therefore, was under impression that Peterson Zumba was working on behalf of the company processing the MOU and other documents. It is argued that in this regard there is a conversation between the applicant and one Martin Gary in which both are talking about the MOU with other documents.
BAIL APPLN. 1836/2024
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present applicant in the judicial custody. It is submitted that the applicant is around 72 years of age and was never knowingly connected with any illegal trafficking of drugs.
It is further submitted that as far as the contention of the applicant regarding custom official not being made witness is concerned, the NCB has made Rajesh Jha and Arun Jha , officials of UPS Express Pvt. Ltd. as two independent witnesses. Further, on a response received from the courier, it has been come on record that the applicant had earlier also received parcels from the same person based in Dubai, the last one being in the month of December, 2021. Lastly, it is submitted that the present case involves
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commercial quantity, and therefore, the rigours of Section 37 of the NDPS Act will be applicable.
24. With deep concern, we may point out that the organised activities oj the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and
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booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law inthe spirit with which Parliament, after due deliberation, has amended."
of Delhi), 2023 SCC OnLine SC 352 , the Hon'ble Supreme Court held as under:
“19. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the
BAIL APPLN. 1836/2024
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court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice : even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts : likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
BAIL APPLN. 1836/2024
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present case, the parcel in question was found to be in the name of the applicant containing 750 gms of heroin, which was delivered and also received by him during controlled delivery. Further to corroborate the said recovery, the seizure memo has been signed by the seizing officer and two independent witnesses.
As discernible from the records and also observed by the trial court the fact that in the WhatsApp chat there is a mention of only giving $500 instead of $400 as the balance owed to the applicant in itself is a proof that the applicant has been involved in the said crime since a long time and this was not the first time he was receiving such parcel. It further proves that the applicant was not giving any consultancy services rather was just receiving the parcels. Considering the aforesaid and taking into account that the provisions u/s 37 NDPS Act are to be applied strictly (Union of India v. Prateek Shukla in Crl.A. No. 284/2021), this court is of the opinion that there is enough evidence on record to support the prosecution case and the present application is devoid of reasonable grounds to infer that the applicant is not guilty of the said offences and is not likely to further commit offences while on bail.
an expression on the merits of the case and shall not have a bearing on the trial of the case.
MANOJ KUMAR OHRI, J
AUGUST 14, 2024 na
BAIL APPLN. 1836/2024
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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/08/2024 at 12:13:48
1 issue framed by the court
Whether the applicant is entitled to regular bail under Section 37 NDPS Act in a case involving recovery of 760 grams heroin (commercial quantity) via controlled delivery.
Colour shows how this judgement treated each authority
Union of India v. Ram Samujh and Ors.Relied on¶7
1999 (9) SCC 429 · Who else cites this
Mohd. Muslim alias Hussain v. State (NCT of Delhi)Relied on¶8
2023 SCC OnLine SC 352 · Who else cites this
Union of India v. Prateek ShuklaApplied¶9
Crl.A. No. 284/2021
3 provisions across 2 enactments
Hotilal Pandey
NCB of Delhi
Manoj Kumar Ohri
As recorded by the court registry
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