* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 424 OF 2009 Manpreet Bal ....Petitioner/Orig.Accused no.2. Versus 1. Union of India, through Intelligence Officer, Narcotics Control Bureau 2. State of Maharashtra .......Respondents. ========== Mr.M.L.Saggar, Senior Counsel with Mr.Anil Lalla and Mr.Sunny Saggar, adv.for applicant. Ms.Poornima Kantharia, Additional Public Prosecutor with Mr.M.S.Bharadwaj, for respondentno.1. Mr.Y.S.Shinde, APP for State of Maharashtra- respondent no.2. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 30TH JULY, 2009. P.C. :- 1. Heard counsels for both sides. 2. The applicant, accused no.2 in N.D.P.S.Special Case No.137 of 2008 had applied to the Court of Sessions for permission to * 2 * go to Canada for six months. That application came to be rejected on 28th November 2008, which order of rejection is under challenge in the present application. The applicant is the resident of Canada. He was arrested at Bombay on 21st September, 2008 for exporting substantial quantity of Ephedrine, a controlled substance under the Narcotics Drugs and Psychotropic Substances Act (`NDPS Act’ for short) to Mexico City by misdeclaring it is a Cellulose Acetate pthalate BP/USP. The consignment was intercepted and two representative samples taken from the four polythene bags, one set of samples was sent for testing to Deputy Chief Chemist, Mumbai whereas the other to Chemical Forensic Science Laboratory, Hyderabad for analysis. 3. After his arrest, the applicant had filed an application for bail. By the order dated 19th November, 2009 he was released on bail inter-alia on condition, that he attends to the office of Narcotics Control Bureau (N.C.B.) Mumbai every alternate day till 1st December, 2009. At the request of the applicant,the condition was modified by the order dated 4th December, 2008 and the applicant who claims to be a resident of Ludhiana was permitted to attend the office of N.C.B.at Chandigarh. By the same order frequency of the visits was also reduced from alternate day to thrice a month. Later, the applicant had also made an unsuccessful attempt to seek discharge from the * 3 * proceedings. 4. Within a few months after modification of the conditions of bail, the applicant applied for permission to return to Canada for a period of 6 months and for directions incidental thereto. The reasons for visit and stay at Canada sought out to be made in the application is ill-health of wife of the applicant and need to sort out the property dispute in Canada. The respondent strongly opposes the application apprehending that if the applicant is allowed to leave the country, though temporarily, he will not return and consequently not be available for the trial. In answer to the apprehension of jumping bail, the applicant relies upon his conduct so far and his claim of having his parents and property in India. He has volunteered to give an undertaking of his uncle i.e. his mother’s sister’s husband that the applicant would return to India at the end of six months. 5. Mr.Saggar the learned counsel for the applicant refers to the Medical Certificate dated 27th June, 2009 issued by the Doctors at Canada and submits that the wife of the applicant is suffering from major depression and schizophrenia since last several years and her condition had worsened due to the involvement of the applicant in the present criminal proceedings. Beyond production of this certificate, there is no * 4 * material whatsoever before the court to show that wife of the applicant is so seriously ill that the applicant must be granted permission to visit her in Cananda. 6. As regards the applicant’s need to sort out the property dispute in Canada, Mr.Saggar submits that there are already proceedings filed by Prudential Property Management Inc. against the applicant and his wife in connection with the mortgage of house of the company. There is an order passed that the house should be vacated and handed over to the company. Mr.Saggar submits that if this eventuality occurs, the family of the applicant would be driven to road. The documents filed by the applicant contains letter dated 25th June, 2009 from the lawyer for the applicant in Canada. It is seen from the letter that after issuance of writ of possession, the arrears under the mortgage and legal costs were paid to the company in May, 2009. As a result, the company has suspended the enforcement of the judgment and order of possession. Further, monthly payment of June 2009 has also been made and the next regular payment under the mortgage was to be made as and when it fell due. The lawyer has opined that in view of the arrears on the mortgage maturing on 1st August, 2009 the company will not agree to renew the mortgage and recommended to obtain new mortgage financing for the property. These facts make it clear that whatever are the * 5 * property disputes in Canada, the same are being ably attended to on behalf of the applicant and for that purpose, it is not necessary for the applicant to visit Canada. 7. Mr.Saggar makes a fervent request to the court to consider the case on humanitarian ground by referring to Article 21 of the Constitution of India. He submits that the conduct of the applicant so far, be seen by the court. He has furnished security pursuant to the order of bail and has regularly been reporting to the office of NCB. He has no previous criminal antecedents. It has been claimed by the applicant that his parents are residents of India. However, his claim made in the application is not supported by his own statement recorded under Section 67 of the NDPS Act, where he states that his parents are Canadian citizens leading retired life at Canada who occasionally visit India at the address “District-Yamunanagar, Haryana”. When this statement is brought to the notice of Mr.Saggar he states that the applicant has withdrawn that statement. Ms.Kantaria, the learned APP submits that the applicant has no roots whatsoever in India that would compel him to return to face the trial. I find much substance in the apprehension expressed because the family of the applicant i.e. His wife and children are canadian citizens, so also his parents. The undertaking which is volunteered to be given by * 6 * the applicant is of the husband of mother’s sister. Considering the distance in the relationship, in my opinion, the undertaking cannot be relied upon solely as an assurance from the applicant that he would return to India at the end of six months. 8. Mr.Saggar, then submits that the applicant has a good chance of being acquitted in the matter because of the procedural flaws in the investigation of the respondent. He submits that the respondent could not have sent two samples for analysis to different laboratories without seeking permission of the court. He relies upon Section 52A(2) of the NDPS Act and the standing instructions no.18(a) issued by the NCB, Delhi in support. Paragraph 1.21 of the standing order deals with custody of duplicate samples and states as under : “1.21. Custody of duplicate sample : Duplicate sample of all seized drugs and psychotropic substances must be preserved and kept safely in the custody of the Investigating Officer alongwith the case property. Normally duplicate sample may not be used but in case of loss of original sample in transit or otherwise or an account of trial court passing an order for a second test, the duplicate sample will be utilised.” . Section 52A of NDPS Act reads as follows : * 7 * “. 52A. Disposal of seized narcotic drugs and psychotropic substances. -(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs a or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant consideration, by notification published in the official Gazette specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed off by such officer and in such manner as that Government may from to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police staion or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory, so * 8 * prepared; or (b)taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to withdraw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) where an application is made under sub-section (2), the Magistrate shall, as soon as may be , allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” The conjoint reading of both the provisions prima-facie does not indicate any absolute bar for the prosecution sending samples to two different laboratories. In any case, this aspect will have to be considered by the trial court at the time of trial. 9. Considering the circumstances of the matter, in my considered opinion it would not be without risk to allow the application for going to Canada. Both the advocates state that * 9 * the matter is pending for framing of charge. In that circumstance, it will only be appropriate to expedite hearing of the trial. The Criminal Application is dismissed. The Sessions Court is directed to hear and dispose off N.D.P.S.Special Case No.137 of 2008 as expeditiously as possible. [SMT.R.P.SONDURBALDOTA, J] * 10 * * 11 * * 12 * * 13 * * 14 * * 15 * * 16 * * 17 * * 18 *