Full Judgment Text
NEUTRAL CITATION NO: 2023:DHC:3208
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 20.03.2023
% Pronounced on : 10.05.2023
+ BAIL APPLN. 3203/2021
EMMANUEL WILLIAM ..... Petitioner
Through: Mr. Amit Dwivedi, Mr. Adarsh
Priyadarshi, Mr. Gaurav Arya and
Mr. Sachin Tanwar, Advocates.
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through: Mr. Subhash Bansal, Sr. Standing
Counsel with Mr. Shashwat Bansal,
Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
RAJNISH BHATNAGAR, J.
1. This is a petition filed by the petitioner under Section 439 Cr.P.C.
seeking regular bail in case being SC No.67/2021 registered under Section
21C/23/29 NDPS Act.
2. The factual matrix in the present case is that on 27.08.2020, the
Narcotics Control Bureau (hereinafter “NCB”) directed Mr. Chetan Sharma,
Investigating Officer, for carrying out controlled delivery operation of
parcels bearing Airway Bill No. 1735174092 and PPA32016193974 lying at
the Cargo Terminal, IGI Airport, New Delhi. Accordingly, on 01.09.2020,
search operation was conducted, and the investigating team seized 970
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grams of heroin and collected samples of substance found in parcels bearing
Airway Bill No. PPA32016193974 (hereinafter “impugned parcel”). It is
further stated that the investigating team conducted a controlled delivery of
subject parcel, which was received by another co-accused namely Wahid
Ali.
3. On 02.09.2020, Wahid Ali was arrested and his statement under
Section 67 NDPS Act was recorded. During inquiry, various incriminating
documents were found in his phone including images of invoice pertaining
to parcel bearing no. AWBY Y0032216496 containing drugs (hereinafter
“second parcel”), which he disclosed was due to arrive on 04.09.2020.
4. On 04.09.2020, another search was conducted by the NCB team at
Hotel Shalimar near IGI Airport where co-accused person namely, Muhsin
Ali was staying in room no. 301 along with three other persons namely
Muhammed Haneef T, Muhammed Shajahan PP, and Munasir Ek. All the
three co-accused were arrested on the recovery of five grams of Heroin from
a bag in the room. Further, certain information was disclosed by the co-
accused Muhsin Ali, which was recorded and thereafter, he was arrested by
the Investigating Officer.
5. On 04.09.2020, a disclosure report was prepared wherein it was
disclosed that co-accused Muhsin Ali was supposed to receive the second
parcel and was required to deliver it to Frank’s Girlfriend, namely,
Bethlehem alias Nunu at Nawada Metro Station at 5 pm on the said date. At
5:15 pm, search was conducted at Nawada Metro Station and Bethlehem
came to receive the second parcel.
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6. Upon being apprehended, she disclosed that a person named
Emmanuel Williams (petitioner herein) who would be receiving the first
parcel from co-accused Wahid Ali. Bethlehem further disclosed that she was
working with Peter Chibuzor alias Frank and Emmanual Williams
(petitioner herein)
7. The Investigating Officer along with Bethlehem reached the Church
at Sector 9, Dwarka in Ambarahi Village where the petitioner came to
collect the parcel from Bethlehem. The petitioner came near Bethlehem and
enquired about the parcel, at which point the NCB Team apprehended him.
Thereafter, the petitioner disclosed that he had come to receive the parcel at
the instance of his friend Peter Chibuzor@Frank who resides in Greater
Noida.
8. The Investigating Officer served the Notice under Section 67 NDPS
Act to the petitioner to tender his voluntary statement which was recorded
on 04.09.2020. He disclosed that he had been doing the business with Peter
and also disclosed that he knew Bethlehem who was Peter’s girlfriend and
was getting forged ID’s for him.
9. On 05.09.2020, the petitioner was arrested. Subsequently on
15.09.2020, Peter was arrested at the instance of Bethlehem and his
disclosure statement was recorded. He disclosed his drug business relations
with the petitioner and Bethlehem. On 17.09.2020, the disclosure statement
of co-accused Peter was recorded again. On 01.03.2021, Intelligence Officer
filed the complaint case bearing SC no. 67/2021 under Section
8(c)/21(c)/23/29 of the NDPS act before the court of Additional Sessions
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Judge, Patiala House Courts and subsequently on the same day cognizance
was taken by the ASJ against all accused persons including the petitioner.
10. I have heard the Ld. Counsel for the petitioner, Ld. Sr. Standing
Counsel for NCB, perused the Status Report filed by the NCB and also
perused the records of this case.
11. It is submitted by the counsel for the petitioner that petitioner is in
judicial custody since 05.09.2020 and has been falsely implicated in this
case. It is further submitted that nothing has been recovered from the present
petitioner. It is further submitted that trial will take time and there is no
chance of influencing the witnesses. It is further submitted that the petitioner
has clean past antecedents. It is further submitted that investigation qua the
petitioner is complete and there is no apprehension of absconding. It is lastly
prayed that bail may be granted to petitioner on the ground of long
incarceration.
12. On the other hand, Sr. Standing counsel for NCB while vehemently
opposing the present bail application submitted that the order dated
14.07.2021 passed by ld. Special judge dismissing the bail application is
absolutely justified. It is further submitted that there is a prima facie case of
conspiracy as the present petitioner is a part of drug-syndicate indulging in
illegal business of drug trafficking. It is further submitted that the petitioner
is a foreign national and he has no roots in the society and there is every
possibility to jump the bail and to frustrate the process of trial. It is further
submitted that the present matter is at the stage of arguments on charge and
the presence of accused persons is necessary for framing of charges. It is
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further submitted by him that the petitioner has indulged himself in
trafficking of contraband of commercial quantity in conspiracy with other
co-accused persons. It is further submitted that there is substantive evidence
on record i.e. recovery of commercial quantity of contraband, voluntary
statements of accused persons leading to discovery of facts, voluntary
statements of Public Witnesses, data extracted from mobile phones of
accused persons and mobile connectivity between co-accused persons;
hence, as per Section 37(i)(b)(ii) there are no reasonable grounds for
believing that the accused is prima-facie not guilty of said offence. It is
further submitted by Ld. Sr. Standing counsel for NCB that this Hon’ble
court vide order dated 25.01.2022 dismissed the bail application of co-
accused person namely Muhsin Ali. Lastly, it is prayed that the present bail
application be also dismissed.
13. In a recent decision of Full Bench of Supreme Court of India, in the
matter of „N.C.B. v. Mohit Aggarwal 2022 Live Law (SC) 613 ‟ , the
following has been observed:
―10. The provisions of Section 37 of the NDPS Act read 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 27A and also for
offences involving commercial quantity] shall be released on
bail or on his own bond unless –
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(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 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 subsection (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.]
11. It is evident from a plain reading of the non-obstante
clause inserted in sub-section (1) and the conditions imposed in
subsection (2) of Section 337 that there are certain restrictions
placed on the power of the Court when granting bail to a
person accused of having committed an offence under the
NDPS Act. Not only are the limitations imposed under Section
439 of the Code of Criminal Procedure, 1973 to be kept in
mind, the restrictions placed under clause (b) of sub-section (1)
of Section 37 are also to be factored in. the conditions imposed
in subsection (1) of Section 37 is that (i) the Public Prosecutor
ought to be given an opportunity to oppose the application
moved by an accused person for release and (ii) if such an
application is opposed, then the Court must be satisfied that
there are reasonable grounds for believing that the person
accused is not guilty of such an offence. Additionally, the Court
must be satisfied that the accused person is unlikely to commit
any offence while on bail.
12. The expression ―reasonable grounds‖ has come up for
discussion in several rulings of this Court. In ―Collector of
Customs, New Delhi v. Ahmadalieva Nodira‖, a decision
rendered by a Three Judges Bench of this Court, it has been
held thus:-
―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—
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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 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.” [emphasis added]
13. The expression ―reasonable ground‖ came up for
discussion in “State of Kerala and others Vs. Rajesh and
others” and this Court has observed as below:
―20 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 and circumstances
as are sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. Inthe case on hand,
the High Court seems to have completely overlooked the
underlying object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time being in
force, regulating the grant of bail, its liberal approach in the
matter of bail under the NDPS Act is indeed uncalled for.‖
[emphasis added]
14. To sum up, the expression ―reasonable grounds‖ used in
clause (b) of Sub-Section (1) of Section 37 would mean
credible, plausible and grounds for the Court to believe that the
accused person is not guilty of the alleged offence. For arriving
at any such conclusion, such facts and circumstances must exist
in a case that can persuade the Court to believe that the
accused person would not have committed such an offence.
Dove-tailed with the aforesaid satisfaction is an additional
consideration that the accused person is unlikely to commit any
offence while on bail.
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15. We may clarify that at the stage of examining an
application for bail in the context of the Section 37 of the Act,
the Court is not required to record a finding that the accused
person is not guilty. The Court is also not expected to weigh the
evidence for arriving at a finding as to whether the accused has
committed an offence under the NDPS Act or a finding as to
whether the accused has committed an offence under the NDPS
Act or not. The entire exercise that the Court is expected to
undertake at this stage is for the limited purpose of releasing
him on bail. Thus, the focus is on the availability of reasonable
grounds for believing that the accused is not guilty of the
offences that he has been charged with and he is unlikely to
commit an offence under the Act while on bail.
16. Coming back to the facts of the instant case, the learned
Single Judge of the High Court cannot be faulted for holding
that the appellant NCB could not have relied on the
confessional statements of the respondent and the other co-
accused recorded under Section 67 of the NDPS Act in the light
of law laid down by a Three Judges Bench of this Court in
Tofan Singh (supra), wherein as per the majority decision, a
confessional statement recorded under Section 67 of the NDPS
Act has been held to be inadmissible in the trial of an offence
under the NDPS Act. Therefore, the admissions made by the
respondent while in custody to the effect that he had illegally
traded in narcotic drugs, will have to be kept aside. However,
this was to the only material that the appellant-NCB had relied
on to oppose the bail application filed by the respondent. The
appellant-NCB had specifically stated that it was the
disclosures made by the respondent that had led the NCB team
to arrive at and raid the godown of the co-accused, Promod
Jaipuria form of tablets, injections and syrups. Counsel for the
appellant-NCB had also pointed out that it was the respondent
who had disclosed the address and location of the co-accused,
Promod Jaipuria who was arrested later on and the CDR
details of the mobile phones of all coaccused including the
respondent herein showed that they were in touch with each
other.
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17. Even dehors the confessional statement of the respondent
and the other co-accused recorded under Section 67 of the
NDPS Act, which were subsequently retracted by them, the
other circumstantial evidence brought on record by the
appellant-NCB ought to have dissuaded the High Court from
exercising its discretion in favour of the respondent and
concluding that there were reasonable grounds to justify that
he was not guilty of such an offence under the NDPS Act. We
are not persuaded by the submission made by learned counsel
for the respondent and the observation made in the impugned
order that since nothing was found from the possession of the
respondent, he is not guilty of the offence for which he has been
charged. Such an assumption would be premature at this stage.
18. In our opinion the narrow parameters of bail available
under Section 37 of the Act, have not been satisfied in the
facts of the instant case. At this stage, it is not safe to
conclude that the respondent has successfully demonstrated
that there are reasonable grounds to believe that he is not
guilty of the offence alleged against him, for him to have been
admitted to bail. The length of the period of his custody or the
fact that the chargesheet has been filed and the trial has
commenced are by themselves not considerations that can be
treated as persuasive grounds for granting relief to the
respondent under Section 3 of the NDPS Act
(Emphasis Supplied)
19. As a result of the aforesaid discussion, the present
appeals are allowed and the impugned order releasing the
respondent on post-arrest bail, is quashed and set aside. The
bail bonds of the respondent are cancelled and he is directed to
be taken into custody forthwith.
14. In view of the above observations, the bail application of the
petitioner is to be considered in accordance as this judgement lays down the
latest law of the land on the point of bail.
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15. In the present case, de hors the statement recorded under Section 67
of the NDPS Act, the following factors are taken into account:
i. Disclosure statements of co-accused persons disclosing the
involvement of the present petitioner.
ii. Recovered contraband falls in commercial quantity.
iii. Statements of recovery witnesses.
iv. The trial has commenced and the Examination of the witnesses is
under progress.
v. Other evidences like call detail records revealing the connection
among the accused persons.
16. The strict conditions for granting bail under Section 37 of the NDPS
Act cannot be said to be satisfied in the present case. None of the ground
argued by the learned counsel for the petitioner can be made basis of
reaching to the conclusion that there are reasonable grounds to believe that
the petitioner is not guilty of the offence. Subsequently, at the present stage,
this Court cannot reach to a reasoned conclusion that petitioner has not
committed the offence.
17. Similarly, there is nothing on record to satisfy that if the petitioner is
released on bail, he will not again indulge in the same crime, during the bail
period.
18. In my view, the twin conditions set out in Section 37 of the NDPS Act
for granting bail are not satisfied. Therefore, the present bail application is
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dismissed and disposed of accordingly along with pending applications, if
any.
19. Nothing stated hereinabove shall tantamount to the expression of any
opinion on the merits of this case.
RAJNISH BHATNAGAR, J
MAY 10, 2023/ p
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