Bar of Section 37 is not attracted for offenses alleged U/S 9A/25 A of the NDPS Act: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 20.04.2021 BAIL APPLN. 1960 2020 NASTOR FARIRAI ZISO Through: Mr. Ajay Verma Advocate Through: Mr. Subhash Bansal Adv. Sr Standing counsel for NCB with Mr. Sushant Bansal Adv HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J By way of this order I shall dispose of the present petition filed under Section 439 Cr.P.C. on behalf of the petitioner for grant of regular bail in SC No. 4119 arising out of FIR No. VIII 27 DZU 2019 Under Section 9A 25A of the Narcotic Drugs And Psychotropic Substances Act 1985 PS. Narcotics Control BureauNew Delhi Brief facts of the case that on 13.07.2019 on the basis of secret information the petitioner accused was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage. The petitioner accused in her statement BAIL APPLN. 1960 2020 u s 67 N.D.P.S. Act admitted the recovery and disclosed that she came to India on request of her friend and the bags concealing the said bags was given by her friend IKE I have heard the Ld. counsel for the petitioner Ld. Sr. Standing Counsel for the respondentand perused the records of this case It is submitted by the Ld. counsel for the petitioner accused that the petitioner is in custody since her date of arrest on 13.07.2019 and the charges have already been framed and the long incarceration of the petitioner would not serve any fruitful purpose. It is also submitted that the alleged recovered substance i.e. Pseudo Ephedrine is a controlled substance and the bar under section 37 of the NDPS Act which provides for bar for granting bail will not be attracted in the present case as the same is applicable only in offences involving commercial quantity which refers to only narcotic drug and psychotropic substance and the substance alleged to be recovered from the petitioner is neither a narcotic drug nor psychotropic substance and is a controlled substance under the NDPS Act. He further submits that NCB officials after conducting the investigation have filed the police report before the Ld. Trial Court and the investigation has been completed and the petitioner is no more required by the investigating agency and the present matter is at the initial stage of prosecution evidence therefore there is very likelihood that the conclusion of the trial shall take time. He further submitted that the petitioner is a respectable foreign citizen and there is no possibility of petitioner fleeing from justice as her passport was seized at the time of investigation by the IO at NCB on the date of arrest BAIL APPLN. 1960 2020 and therefore there is no chance of the petitioner leaving India and the petitioner does not have any criminal antecedents and is not previous convict in any case Ld. Counsel for the petitioner has relied upon following Judgments:  Gudikanti Narasimhulu and Others vs. Public Prosecutor 1978 AIR  Rajesh Sharma v Directorate of Revenue Intelligence 2018 SCC Del 12372 Decided on 14.8.2018  Sri. Vastavayi Siva Ramakrishna Paratna Varma vs. The State of Karnataka criminal Petition no. 200880 2017 Decided on 16.8.2017  Madderia Shankar vs State of Karnataka Criminal Petition No 200811 2017 Decided on 1.08.2017  Manoj Kumar Vs Director of Revenue Intelligence 2015 BAIL.A.257 2015 Decided on 03.03.2015 SCC 7830219 DLT  Niranjan Jayantilal Shah v. Directorate of Revenue Intelligence Bail Appln. 1202 2013 2013 SCC Online Del 4608  G. M. Akbar Ali V. The Intelligence Officer Crl. O.P. No. 263210 Decided on 19.11.2010  Rafael Palafox Garcia v The Union of India and Anr. Criminal Application no. 2015 2008  Lambert Kroger vs. State 2000 SCC Online Del 208  Sartori Livio vs. State 2005DRJ 482  Nasimjon Komlov v. Customs CRLM(M) No. 2038 2000 Decided on BAIL APPLN. 1960 2020 On the other side while opposing the bail of the petitioner Ld. Sr Standing Counsel submitted that during her voluntary statement the accused was within her knowledge and had deposed under section 67 NDPS Act and admitted that the said drugs which were recovered from her possession was given to her by IKE which had to be handed over to Jonathan at Zambia. It is also submitted by Ld. Sr. Standing Counsel that petitioner accused is charged of offence for trafficking of Pseudo Ephedrine which is used in production of narcotic drugs psychotropic substance. It is further submitted that all crucial witnesses are yet to be examined under trial and if petitioner accused is released on bail the petitioner accused may influence the witnesses and petitioner accused is a foreign national and may jump the bail and abscond. Ld. Sr. Standing Counsel for the respondenthas relied upon “Union of India Vs. Prateek Shukla” Criminal Appeal No 2821 decided by the Supreme Court of India on March 08 2021 The offences alleged against the petitioner are U s 9A 25 A of the NDPS Act. First and foremost question is whether rigors U s 37 of the NDPS Act applies to the case of the petitioner or not The present petitioner is facing prosecution for charges U s 9A and 25 A of the NDPS Act and hence obviously her case would not be covered U s 37 of the NDPS Act. Moreover as far as Section 9A which deals with controlled substance is concerned there is no categorization of small quantity or commercial quantity Therefore concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substance BAIL APPLN. 1960 2020 Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. "Controlled substance" means any substance which the Central Government may having regard to the available information as to its possible use in the production manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention by notification be a controlled in the official Gazette declare substance. The Ministry to of Finance Department of Revenue vide its notification dated 28th December 1999 has declared pseudo ephedrine a controlled substance under the Act. The Central Government being of the opinion that having regard to the use of the controlled substances in the production or manufacture of any narcotic drug or psychotropic substance it is necessary or expedient so to do in the public interest in exercise of powers conferred by Section 9A of the Act has made the Narcotic Drugs and Psychotropic SubstancesOrder 1993 which has come into force w.e.f. 15th April 1993 petitioner accused is 19.3 Kg. of pseudoephedrine hydrochloride which is a It has been rightly submitted by the Ld. counsel for the petitioner accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U s 9A r w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2of the Act BAIL APPLN. 1960 2020 The next point for consideration is whether the petitioner accused who is a foreign national is entitled to be released on bail if she is able to make out a case in her favour. The counsel for the petitioner has placed reliance upon “Gudikanti Narasimhulu and Others Vs. Public Prosecutor” 1978 AIR SC 429 in which it has been held as follows Personal liberty deprived when bail is refused is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community." It was further held that deprivation of personal freedom ephemeral or enduring must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution.” Ld. counsel for the petitioner accused has also relied upon “Sartori Livio vs. State” 2005DRJ 482 in which it has been held as follows It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights It was further added by the Hon ble Court that In view of this judgment with which I am in agreement it is clear that just because a foreign national is involved it does not mean that he is to be denied the benefit of bail. Therefore in view of the judgmentsrelied upon by the Ld counsel for the petitioner accused there is no bar for releasing foreign national on bail if the case so warrants BAIL APPLN. 1960 2020 It has also been argued by the Ld. counsel for the petitioner that in cases where the controlled substance recovered was even much larger then that recovered from the petitioner accused even in those cases the bail have been granted and he has placed reliance upon “Niranjan Jayantilal Shah Vs. Directorate of Revenue Intelligence” decided on 19.11.2013this Court granted bail to the accused where the recovery of the same controlled substances was of 100 Kg. This decision referred to had relied upon several other decisions of the Court where the recovery of much larger quantities of controlled substances have been made Reliance can also be placed upon the judgment of this Court “Manoj Kumar Vs. Directorate of Revenue Intelligence” 2015 SCC On Line Delhi 7830 16. As far as the judgment Union of India Vs. Prateek Shuklais the same is not applicable to the facts of the present case as in the said case the sections involved were sections 8 9A 25A 23 and 29 of the NDPS Act which is not so in the present case 17. As already observed hereinabove bar of section 37 of the NDPS Act is not applicable. Therefore keeping in view the entire facts and circumstances the petitioner accused who is in J.C. since 13.07.2019 is admitted to bail on her furnishing personal bond in the sum of Rs.1 00 000 with two solvent sureties each of the like amount subject to the satisfaction of the trial Court. Being released on bail the petitioner shall inform the NCB Office the address at which she will reside during the period she is on bail. Any change in the address shall also be communicated to the NCB BAIL APPLN. 1960 2020 Office within 2 days. The petitioner shall report to the NCB office once in a week till the conclusion of the trial. The petitioner shall not leave the limits of NCT of Delhi without prior permission of the Trial Court. With these directions the application stands disposed of 18. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case RAJNISH BHATNAGAR J APRIL 20 2021 BAIL APPLN. 1960 2020 Page 

Summary: Section 9A which deals with controlled substances is concerned, there is no categorization of small quantity or commercial quantity. Therefore, the concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substances and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act. This was held in NASTOR FARIRAI ZISO  V. NCB [BAIL APPLN. 1960/2020] in the High Court of Delhi by a single bench consisting of JUSTICE RAJNISH BHATNAGAR. Facts are that on the basis of secret information, the petitioner was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage. The petitioner accused in her statement u/s 67 N.D.P.S. Act admitted the bags concealing the said bags were given by her friend IKE. Petitioner has filed a petition under Section 439 Cr.P.C. for grant of regular bail. The counsel for the petitioner submitted that the charges have been framed and the long incarceration of the petitioner would not serve any purpose. The alleged recovered substance is a controlled substance and the bar under section 37 of the NDPS Act for granting bail will not be attracted in the present case, the investigation has been completed, and the petitioner is a respectable foreign citizen and there is no possibility of petitioner fleeing from justice as her passport was seized. The for the respondent submitted that during her voluntary statement under section 67, NDPS Act she had admitted that the said drugs which were recovered from her possession were given to her by IKE, the petitioner is charged of offense for trafficking of Pseudo-Ephedrine which is used in the production of narcotic drugs/ psychotropic substance. Crucial witnesses are yet to be examined under trial and the petitioner is a foreign national and may jump bail and abscond. The respondent (NCB) relied upon Union of India Vs. Prateek Shukla. The court referred to the order of the Apex Court in the case of “Sartori Livio vs. State”, wherein the following observations were made,  “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community.” It was further held that “deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.” The court also made reference to the order of the Delhi High Court in the case of “Sartori Livio vs. State”, wherein the following observations were made, “It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights.”