Bail.Appl. No. 2449/2008 Page 1 of 40 “REPORTABLE” * HIGH COURT OF DELHI AT NEW DELHI + BAIL APPL. NO. 2449/2008 Date of decision : 16.01.2009 # HARISH JOSHI ...... Petitioner ! Through : Mr. Dinesh Mathur, Sr. Adv. with Mr. Vikas Gupta, Adv. Versus $ D.R.I. ……Respondent ^ Through : Mr. Satish Aggarwal, Adv. IO Alkesh Rao, Asstt. Director Nilank Kumar, DRI . % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. 1. On receipt of specific intelligence by the officers of Directorate of Revenue Intelligence (hereinafter referred as „DRI‟) that one person would come in a Tata Indica Car bearing Registration No. UP 14-AK- Bail.Appl. No. 2449/2008 Page 2 of 40 0505 carrying narcotic drugs concealed in a suitcase which would be transferred to another person who would also come to the designated place of delivery of drugs i.e. opposite DLF Golf Course, Gurgaon at about 6.00 P.M. on 8.9.2008, surveillance was organized near DLF Golf Course. At about 6.30 P.M. the said vehicle while coming from Delhi when did not stop near the DLF Golf Course, was followed by DRI officers. The said Tata Indica car took a right turn after reaching the red light and after about 500 meters took a left turn and entered into a lane. The said vehicle stopped near the petitioner/accused who seemed to be waiting for the said car. DRI officers continued to stay in their own car and watched from some distance that a person had alighted from the said Tata Indica Car and talked to the petitioner and when DRI officers tried to intercept the said car, the person who had come out of the car managed to escape whereas petitioner got inside the car which took U-turn and sped away towards Delhi. 2. The said vehicle was finally intercepted and Bail.Appl. No. 2449/2008 Page 3 of 40 stopped by the DRI officers opposite Shiv Murti, near Mahipal Pur, New Delhi at around 7.30 P.M. The DRI officers looked inside the car but did not find anything incriminating on or underneath the seats of the car. Thereafter, on the asking of the DRI officers, the driver of the car opened the dickey of the car wherein a black coloured zipper trolley suitcase was found. DRI officers also inquired about the identity of the person who was sitting inside the car. One of the occupants was the petitioner. However, the driver of the car expressed his ignorance if any narcotics drugs were being carried in the car. The petitioner is alleged to have admitted that he had to take delivery of the suitcase containing 5 kg heroin concealed therein lying in the dickey of the car. The person who was successful in running away was identified as Sanjay. 3. A notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as „Act‟) was issued to the petitioner and other co-accused persons before Bail.Appl. No. 2449/2008 Page 4 of 40 conducting their personal search as well as search of the suitcase and the car. Petitioner and other co-accused persons expressed in writing that they did not want presence of a Magistrate or a Gazetted officer for their personal search or for search of the vehicle or the suitcase. Thereafter, petitioner along with other co-accused were taken to CGO Complex, New Delhi. There the Indica Car was searched; the suitcase was taken out from dickey of the car along with other documents pertaining to the vehicle. On opening the suitcase and its careful examination in the presence of the petitioner and other accused persons revealed that the said suitcase contained old and used clothes and on removing base fabric of the suitcase a sunmica sheet was found affixed and after removing the said sheet, five packets wrapped with transparent tape were found placed on another sunmica sheet attached to the base of the said suitcase. The packets were found to contain heroin each packets weighing 1.070 kg., 1.070 kg., 1.075 kgs., 1.074 kgs. and 1.078 kg. respectively. Bail.Appl. No. 2449/2008 Page 5 of 40 4. Thereafter, other formalities like taking out sample, sealing the case property etc. were completed. Panchnama was prepared on 9.9.2008 which was signed by the accused persons and panch witnesses as well as intelligence officer and the accused persons were arrested. The Intelligence officer also recorded statement of the accused persons including the petitioner under Section 67 of the Act. 5. Petitioner has filed this petition under Section 37 of the NDPS Act read with Section 439 Code of Criminal Procedure (hereinafter referred to as „Cr.P.C.‟) seeking his release on bail. The bail application is vehemently opposed by the respondent department. 6. Mr. Dinesh Mathur, senior counsel appearing for the petitioner has argued that the Investigating Agency has not complied with the mandatory provisions of Section 50 of the Act as notice under Section 50 of the Act is pre-requisite before conducting search of any person under the Bail.Appl. No. 2449/2008 Page 6 of 40 provisions of Sections 41, 42 or 43 of the Act and the search was not conducted by a Magistrate or a Gazetted officer. 7. Notice under Section 50 of the Act allegedly served upon the petitioner was not in accordance with law. It is also argued that DRI officers did not offer their search to the accused persons thereby violating the provisions of the said Section. It is also submitted that DRI officers had searched the vehicle at the spot where it was intercepted but nothing incriminating was found in the car or underneath the car seats. 8. It is further submitted by learned counsel for the petitioner that the alleged declaration of petitioner to the fact that he was to take delivery of the suitcase containing 5 kg of heroin concealed therein and lying in the dickey of the Indica Car in which he was travelling, was obtained by the DRI officers on the spot and the petitioner was arrested before notice under Section 67 of the Act was served upon him, as the said notice was served Bail.Appl. No. 2449/2008 Page 7 of 40 upon the petitioner on 9.9.2008. Therefore, the petitioner was also in custody when notice under Section 67 of the Act was served upon him and his statement was recorded. The notice under Section 67 of the Act was therefore served upon the petitioner as a mere formality in view of the fact that inquiry had already been made about the contents of the bag and no further investigation was required. It is submitted that statement of the petitioner recorded under Section 67 of the Act while in custody is in complete contravention of law. 9. It is further submitted by learned counsel for the petitioner that as per the panchnama, DRI officers had left the office along with witnesses at 4.45 P.M. on 8.9.2008 for the spot and they stopped the Indica Car at about 6.30 P.M. The vehicle was finally intercepted at about 7.50 P.M.; whereas Petitioner was actually abducted from the compound inside the colony of DLF Exclusive Apartment, Gurgaon at about 7.00 P.M. for which a report being DD No.38 dated 8.9.2008 was lodged Bail.Appl. No. 2449/2008 Page 8 of 40 by Surender Kumar, Supervisor of the said Apartment with Police Station Sushant Lok at about 8.15 P.M. It is alleged that timing of the entire episode of abduction and the event as narrated in the panchnama are contemporary and in view of the said coinciding, two views are possible. 10. It is submitted that the timing of abduction and the alleged interception of car at about 7.50 P.M. by the DRI officers, clearly indicate that petitioner was lifted from his house and was falsely implicated in this case. 11. It is further argued that Indica Car was allegedly intercepted and stopped across Shiv Murti and from the place where the petitioner got into the car to reach to Shiv Murti, the vehicle had to first come on the M.G. road and from there it had to cross Toll Plaza. Indica Car could not have crossed Toll Plaza without paying the toll tax. Surprisingly, the DRI officers who were chasing the Indica Car could not even intercept or stop the said vehicle before it Bail.Appl. No. 2449/2008 Page 9 of 40 could cross Toll Plaza, especially when the Car must have stopped for a few minutes to pay the toll tax. Therefore, according to the petitioner, the entire story of the prosecution regarding the information and chase of the car, its interception across Shiv Murti is full of dents and is not believable. 12. It is also submitted that DRI officers did not take any assistance of the local police, which under normal circumstances, should have been taken. The alleged two witnesses to the panchnama had accompanied the DRI officers from their office itself and are not independent witnesses. 13. It is further argued that statement of the petitioner recorded under Section 67 of the Act tantamounts to confession made to a police official and therefore cannot be proved against the petitioner for the offence allegedly committed by him. The statement made under Section 67 of the Act was retracted by the petitioner. Therefore, he has prayed that petitioner be released on bail. Bail.Appl. No. 2449/2008 Page 10 of 40 14. Section 25 of the Indian Evidence Act has to be read with Section 67 of the Act for considering admissibility of the statement made by the petitioner to the police under Section 67 of the Act. 15. Mr. Satish Aggarwal, learned counsel appearing for the respondent department has argued that petitioner is an NRI and is permanent resident of Canada and was staying at Gurgaon in a rented premises. The investigation is at its initial stage. The petitioner himself admitted in his statement recorded under Section 67 of the Act that he was to take delivery of the contraband from Sanjay near Radison Hotel but, thereafter, he changed the place of delivery and asked Sanjay to meet him at DLF Gold Link and also disclosed that he would be standing and waiting in a lane and when the car reached the place where he was stay, Sanjay got down and ran away and he sat in the car. Therefore, as per his confessional statement, the petitioner was found in possession of 5 kg of heroin packed in five separate bags. Bail.Appl. No. 2449/2008 Page 11 of 40 16. It is further argued by learned counsel for the respondent department that by virtue of provisions contained in Section 37 of the Act, petitioner is not entitled to be released on bail because for releasing the petitioner on bail, additional requirement of Section 37 besides the conditions as laid down under Section 167 Cr.P.C. and 437 Cr.P.C. are required to be complied with. Heroin recovered was of commercial quantity and therefore provisions of Section 37 of the Act are applicable to the facts and circumstances of this case, which, restricts the power of the court to release the petitioner on bail. 17. It is submitted that petitioner had made a statement under Section 67 of the Act voluntarily, without fear, pressure or threat and was written by him in his own hand-writing and that the alleged retraction by the petitioner was nothing but an afterthought and based on legal advice. It is urged that DD No.38 regarding abduction recorded at Police Station Sushant Lok, Gurgaon was found without substance and it was closed by the Bail.Appl. No. 2449/2008 Page 12 of 40 concerned police officials on 9.9.2008 after investigating officers of the said DD made inquiries from officers of DRI. 18. It is also submitted that petitioner was got medically examined by the doctor of Dr. Ram Manohar Lohia Hospital, New Delhi before he was produced in the court. It is prayed that under the circumstances, petition deserves dismissal. 19. Jurisdiction of the court to grant bail for an offence under NDPS Act is circumscribed by the provisions contained in Section 37 of the Act. This Section starts with non obstante clause and has an overriding effect over the provisions regulating bail contained in Cr.P.C. This section makes offence cognizable and non bailable. A person accused of offence punishable under Section 19 or Section 24 or 27-A and also for offence involving commercial quantity is not entitled to be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release and/or where the Public Prosecutor Bail.Appl. No. 2449/2008 Page 13 of 40 opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. These limitations on grant of bail specified in the Section are in addition to the limitations prescribed under the Cr.P.C. Section 37 of the Act reads 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 [offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not Bail.Appl. No. 2449/2008 Page 14 of 40 guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail.]” 20. Thus, the two limitations for grant of bail provided under Section 37 of the Act are (i) an opportunity to the Public Prosecutor to oppose bail application and (ii) the satisfaction of the court that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The limitations on grant of bail come only when the question of granting bail arises on merits. The second condition is twofold, firstly, the court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and, secondly, that he is not likely to commit any offence while on bail. These two conditions are cumulative and are required to be Bail.Appl. No. 2449/2008 Page 15 of 40 fulfilled and in no manner can be treated as alternative. 21. Emphasis is on the words „reasonable grounds‟. Reasonable grounds means that court should be satisfied something more than prima facie grounds. There must be substantial probable causes for believing that the accused is not guilty of the alleged offence. In other words, the provision requires existence of such facts and circumstances as are sufficient in themselves for justified satisfaction of the court that the accused is not guilty of the alleged offence. Reference is made to „N.R. Mon vs. Md. Nasimuddin, 2008 (3) JCC (Narcotics) 170‟, in the said case it was observed:- 7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are : the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, and that Bail.Appl. No. 2449/2008 Page 16 of 40 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…………….” Reference is also made to „Union of India vs. Ram Samujh & Anr., (1999) (9) SCC 429‟ and „Babua Alias Tazmul Hosssain vs. State of Orissa, (2001) 2 SCC 566‟. 22. The abovesaid provisions are mandatory in nature and are required to be adhered to by the Court. Accused who are involved into drug trafficking are responsible for the death of number of innocent young victims who are vulnerable and it causes deleterious effects and deadly impact on the society. These persons, even if released temporarily Bail.Appl. No. 2449/2008 Page 17 of 40 on bail, there is every possibility and probability that these persons would continue their nefarious activities or trafficking or dealing in narcotics, intoxicants clandestinely, may be because of large stake and illegal profit. 23. At the same time, Section 37 of the Act has to be construed in a pragmatic manner and no such construction can be given to the Section in such a way so as to negate the right of a party to obtain bail, which is otherwise, a valuable right for practical purposes. For considering application for grant of bail, a detailed reasoning may not be necessary to be assigned in the order but must demonstrate application of mind, atleast in serious cases, as to why an applicant has been granted or denied privilege of bail. (Reference is made to „State of Uttaranchal vs. Rajesh Kumar Gupta‟, 2006 (3) JCC [Narcotics] 178‟). 24. Section 37 of the Act in no manner suggests that an accused in custody must wait till the time the trial of the case is taken up to satisfy the court that Bail.Appl. No. 2449/2008 Page 18 of 40 there are reasonable grounds for believing that he is not guilty of such offence, provided, the necessary material was available on record for the court to conclude that the satisfaction as required under the Section was met. The Court is not to give a finding that accused is not guilty, or guilty, which is to be recorded after the conclusion of the trial, whereas the satisfaction as required under the Section has to be arrived at by the court before the conclusion of the trial, may be at any stage of the investigation or in due course of the trial itself. 25. The court, therefore, cannot shirk its responsibility by postponing the consideration of the fact whether reasonable grounds exist for believing that the accused is not guilty till the stage of actual trial. If materials are shown to exist on the basis of which court can feel satisfied that there are reasonable grounds for believing that the accused is not guilty, the Court should not take recourse to any other alternative other than recording its necessary satisfaction. The court has also to express its satisfaction that accused is not likely to commit any Bail.Appl. No. 2449/2008 Page 19 of 40 offence while on bail. For that purpose criminal antecedents of the accused can also be considered by the court. Reference is made to „(Satyendra Sah vs. State of Bihar, 1996 (1) Crimes 267 (H.C.) Patna High Court)‟. 26. Keeping in mind the provisions of Section 37 of the Act as analysed above, for grant of bail for an offence under the Act, I shall now proceed with the present application on its merits. 27. About 4.863 kg. (in net) heroin concealed in a suitcase was recovered from the dickey of Tata Indica Car bearing registration No. UP 14-AK-0505. The samples of the recovered substance were sent to Central Revenues Control Laboratory, New Delhi for quantitative test. Each of the samples gave positive test for Diacetyle Morphine (Heroin) and total purity test was 55.34% average. Thus, the heroin recovered is of commercial quantity. The provisions of Section 37 of the Act are applicable to this case which are mandatory to be considered by this court while considering this bail application. Bail.Appl. No. 2449/2008 Page 20 of 40 Public Prosecutor has been given an opportunity to oppose the application for release of the petitioner on bail and has been heard at length. Therefore, first condition contained in Section 37 (1) (b) of the Act is complied with. 28. Now it is to be seen whether, there are reasonable grounds for this court to believe that petitioner is not guilty of an offence under the Act and also that he is not likely to commit any offence while on bail. 29. One of the apprehensions of the respondent- department is that petitioner being NRI and permanent resident of Canada, there is every likelihood that he would abscond, if released on bail. Undisputedly, the passport of the petitioner has already been seized by the intelligence officer. Therefore, under these circumstances, the fear expressed by the learned counsel for the respondent department that petitioner would jump bail, if released being NRI is without any substance. 30. Section 41 of the Act confers powers on a Bail.Appl. No. 2449/2008 Page 21 of 40 Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class so empowered by the State Government to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act. He can also issue warrants for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence. This Section also provides that any officer of Gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government who has such personal knowledge or information given by any person, may authorise any officer subordinate to him, but superior in rank to a peon, sepoy or a constable, to arrest such a person or search a building, Bail.Appl. No. 2449/2008 Page 22 of 40 conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. Such authorized an officer has all the powers of an officer acting under Section 42 of the Act. 31. Section 42 of the Act empowers such an officer to enter into, search, seize and arrest without warrant or authorization if he has reason to believe that search warrant or authorization cannot be obtained without affording opportunity of the concealment of evidence or facility for the escape of an offender, may enter and search such building, conveyance or place at any time between sunset and sunrise. Section 43 of the Act speaks of power of seizure and arrest in public place. 32. Section 50 of the Act lays down conditions under which search of a person has to be conducted. Provisions of Section 50 of the Act are mandatory in nature and therefore, breach of the condition vitiates the trial, as non compliance would result non relevance of search and consequent seizure of Bail.Appl. No. 2449/2008 Page 23 of 40 goods. After a person is arrested and before a search is conducted, it is mandatory to inform the