Bail once granted should not be cancelled in a mechanical manner without considering: High Court Of New Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI VIA VIDEO CONFERENCING BAIL APPLN. 3149 2020 Pronounced on : 09.11.2021 KELVIN GEORGE KATINDASA Through: Mr. J.S. Kushwaha Advocate NARCOTICS CONTROL BUREAU Through: Mr. P.C. Aggarwal Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J The present bail application has been filed by the petitioner under Section 439 Cr.P.C. read with Section 37 of the NDPS Act seeking regular bail in SC No. 139 2019 registered under Sections 9A 25A 29 of the NDPS Act at police Station Crime Branch Delhi Briefly stated the facts of the case are that on 10.01.2019 on the basis of secret information petitioner Kelvin George Katindasa was intercepted at IGI airport while he was travelling to Dar Es Sallam via Doha and during search 24.5kg of Pseudoephedrine was recovered BAIL APPLN. 3149 2020 In his statement u s 67 NDPS Act petitioner disclosed that he came to Delhi along with his brother Nagary and stayed at hotel Venus Mahipalpur Delhi and on 09.01.2019 Nagary asked him to go to INA market to collect the suitcase and thereafter petitioner collected the suitcase of Pseudoephedrine from Chinedu and Kelvinwas supposed to hand over this suitcase to Nagary at Tanzania. On 18.02.2019 accused Nagary was also intercepted at Mumbai airport on the basis of LOC. Accused Nagary also accepted his guilt. The mobile phones of accused persons were examined and it was revealed that they were in touch with others and shows that they were the members of international drug syndicate and involved in drug trafficking I have heard the Ld. counsel for the petitioner Ld. counsel for the respondentperused the records of this case and the Status Report Reply filed by the respondentwill take long time in concluding the matter so no purpose would be served by keeping the petitioner behind the bar counsel for the petitioner has relied upon the following Judgment dated 13.03.2020 passed by this Court in Crl. Appeal No. 1027 2015 titled as Amani Fidel Chris Vs. Narcotics Control b) Ram Narayan Vs. State 2005JCC170 c ) Sujit Tiwari Vs. State of Gujarat and another 2020Crimes On the other hand it is submitted by the Ld. counsel for the respondentthat the allegations against the petitioner are grave and serious in nature. He further submitted that the bail of the co BAIL APPLN. 3149 2020 accused has been dismissed by this court vide order dated 24.11.2020 He further submitted that the petitioner is a part of drug syndicate dealing in drug trafficking and the petitioner is a foreigner and he may abscond if released on bail counsel for the respondenthas relied upon the following judgments 8 SCC 50 State of Gujrat Vs. Salimbhai Abdulgaffar Sheikh & Ors.10 SCC 88 c ) Achint Navinbhai Patel alias Mahesh Shah Vs. State of Gujarat Anr.10 SCC 529 Supdt. Narcotics Control Bureau Chennai Vs. R. Paulsamy 2001 SCC648SC 560 Intelligence Officer Narcotics C. Bureau Vs. Sambhu Sonkar Anr. AIR 2001 SC 830UOI Vs. Aharwa Deen 200 VI AD155 UOI Vs. Ram Samuj & Anr. 1993CC Cases22 UOI Vs. Thamisharasi & Ors. 1995 SCC665Heera Lal Vs. State 2003(2) CC CasesMd. Ahshan Vs. The State2004JCC 13 m) Mohd. Asmahil @ Mohd. Ismail @ Iqbal Bhai Vs. NCB Crl. M M) No. 354 2002 decided by Delhi High Court on 15.04.2002 Sanjeev Kumar Vs. NCB Crl. Misc.(M) No. 3962 2002 decided by Hon’ble Mr. Justice RC Chopra of DHC on 17.02.2003 10. As far as the judgments relied upon by the Ld. counsel for the petitioner are concerned they are distinguishable on facts and circumstances and it is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts and circumstances of each case. The ratio of one case cannot be applied mechanically to other case without considering their factual situation and circumstances because a slight difference in the facts or additional facts makes a lot of difference in precedential value of a In the instant case on 10.01.2019 a secret information was received and petitioner was intercepted at IGI airport while he was BAIL APPLN. 3149 2020 travelling to Dar Es Sallam via Doha and during search 24.5 Kg. of Pseudoephedrine was recovered from his bag. The petitioner during investigation tendered his voluntary statement U s 67 NDPS Act and admitted the recovery. The petitioner was supposed to hand over the suit case containing Pseudoephedrine to his co accused at Tanzania which was seized from his possession. During investigation mobile phone of the petitioner and other co accused persons were examined and it was found that they were in constant touch with each other 12. As far as the contention of the counsel for the petitioner that the manner in which the samples were drawn was not as per law as the sample were not taken from each packet and this is totally a violation of law in drawing the sample of drugs and the other contention that while issuing notice U s 50 of the NDPS Act the mandatory provisions of Section 50 NDPS Act have not been followed both the contentions are liable to be rejected as they relate to violation of the procedural aspects which can only be looked into during the course of trial and cannot be deeply analyzed at the stage of bail 13. The other contention of the counsel for the petitioner is that embargo of Section 37 of NDPS Act is not applicable as the substance recovered is neither a narcotic drug nor a psychotropic substance recovery of huge quantity of Pseudoephedrine i.e. 24.5 Kg. which was recovered from the BAIL APPLN. 3149 2020 possession of the petitioner while he was present at the IGI airport for travelling to Tanzania. The Supreme Court in the case of Union of India Vs. Prateek Shukla Criminal Appeal No. 2821 decided on 08.03.2021 has cancelled the bail of the petitioner who was found in possession of controlled substance namely acetic anhydride In the instant case looking into the allegations against petitioner quantity of the substance recovered and also the fact that the petitioner is a foreigner and bail of the co accused has been dismissed by this court vide order dated 24.11.2020 no ground for bail is made out the bail application is therefore dismissed Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case RAJNISH BHATNAGAR J NOVEMBER 09 2021 BAIL APPLN. 3149 2020 Page 

Summary: The present bail application has been filed by the petitioner under Section 439 Cr. P.C and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE RAJNISH BHATNAGAR, in the matter KELVIN GEORGE KATINDASA V. NARCOTICS CONTROL BUREAU dealt with an issue mentioned above. Briefly stated, the facts of the case which was dated 10.01.2019, were firstly intercepted at IGI airport while he was travelling to Dar-Es-Sallam via Doha and during the search, 24.5kg of Pseudoephedrine was recovered. Petitioner had disclosed that he came to Delhi along with his brother Nagar and stayed at the hotel, later the suitcase was collected by the INA market, which was supposed to be handed over to Nagar in Tanzania. Meanwhile on 18.02.2019 accused Nagar was also intercepted at Mumbai airport based on LOC, Accused Nagar also accepted his guilt and the mobile phones of accused persons were examined which proved him to be so. Ld. counsel for the petitioner, Ld. counsel for the respondent (NCB), perused the records of this case and the Status Report filed by the respondent (NCB). He further also submitted that how the samples were drawn was not as per law as the sample was not taken from each packet and this is a violation of law in drawing the sample of drugs. Later he submitted that a petitioner is a young person who has been falsely implicated in the present case and submitted that while issuing notice U/s 50 NDPS Act, the mandatory provisions of Section 50 NDPS Act have not been followed. He further submitted that in the instant case the embargo of Section 37 NDPS Act is not applicable. Ld. counsel for the petitioner has relied upon the following judgments: Ld. counsel for the respondent that the allegations against the petitioner are grave. He further submitted that the bail of the co- BAIL APPLN. 3149/2020 Page 4 of 7 accused has been dismissed by this court vide order dated 24.11.2020. He further submitted that the petitioner is a part of a drug syndicate dealing in drug trafficking and the petitioner is a foreigner and he may abscond if released on bail. Ld. counsel for the respondent (NCB) has relied upon the following judgments : And few more facts were mentioned by the advocate. The other contention of the counsel for the petitioner is that embargo of Section 37 of the NDPS Act is not applicable as the substance recovered is neither a narcotic drug nor a psychotropic substance. The Supreme Court also referred to the case of the Union of India Vs. Prateek Shukla, Criminal Appeal No. 284 of 2021 decided on 08.03.2021 were they had cancelled the bail of the petitioner who was found in possession of a controlled substance namely acetic anhydride. The court perused the facts and argument’s presented, it thought that- “The instant case, looking into the allegations against the petitioner, the quantity of the substance recovered and also the fact that the petitioner is a foreigner and bail of the co-accused has been dismissed by this court vide order dated 24.11.2020, no ground for bail is made out, the bail application is, therefore, dismissed”. Click here for judgment