Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 981/2023
UGO GEOFFERY FRANKLIN ..... Petitioner
Through: Mr. Anoop Kumar Gupta, Mr. Rohan
Gupta and Ms. Aanchal, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Amol Sinha, ASC with Mr.
Kshitiz Garg, Mr. Ashvini Kumar &
Adv. Chavi Lazarus, Advs. & SI
Deepak Joshi, Special Cell/NR/STF
% Date of Decision: 31.07.2023.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
J U D G M E N T
DINESH KUMAR SHARMA, J. (Oral)
BAIL APPLN. 981/2023
1. The present bail application has been filed under Section 439 Cr.P.C.
read with Section 37 NDPS Act for the grant of regular bail in a case
titled as State vs. Harjinder Singh &Ors. SC NO. 8689/2016. FIR NO.
63/2015; P.S: Special Cell, New Delhi.
2. Briefly Stating, that on receipt of secret information on 18.11.2015, a
trap was laid at Burari crossing, Outer Ring Road where accused
Mangal was seen handing over a packet alleged to be containing 1 Kg
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Signing Date:03.08.2023
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white colour heroin to Harjinder Singh and both were apprehended on
the spot. It has further been alleged that 1 Kg white heroin was also
recovered from the possession of Harjinder and another 1 Kg brown
heroin was recovered from the Scooty of accused Mangal on the spot.
During the investigation accused Mangal made a disclosure statement
that he is in the trade of drug supply along with Mohd. Akhtar @ Raja,
who used to get a huge supply of heroin from Sehzad. Allegedly 2 kg
opium and 1 kg alprazolam were also recovered from the residence of
accused Mangal.
3. The case of the prosecution is that at the instance of accused Shabir
Ahmed Bhat@Sehjah the present applicant /accused Ugo Geoffry
Franklin was arrested on 01.12.2015,and 1kg of heroin was alleged to
be recovered from his possession and another accused Shabir Ahmed
Bhat was also arrested.
4. It has further been alleged that accused Mohd. Akhtar was also arrested
on 25.11.2015 and 525 gms of heroin was recovered from his newly
purchased flat in New Chauhan Bangar, Seelampur, Delhi.
5. It is further alleged that applicant/co-accused Ugo Geoffery Franklin
disclosed that he used to get the supply of heroin from one Imamudin,
an Afghan national who was introduced to him by his Nigerian friend
who is presently in Nigeria and they used to supply the heroin to
Shahbir Ahmed Bhat @ Sehjad since many months. After the
completion of the investigation in case FIR No. 63/2015, charge-sheet
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was filed under Sections 419/468/471/474/489 Cr.P.C. and Sections
18/21/22/25/29/61/85 NDPS Act and Section 14 of Foreigners Act.
6. Learned counsel for the applicant submits that the accused Ugo
Geoffery Franklin is in custody since 19.11.2015. Learned counsel for
the applicant also submits that earlier also a bail application was moved
bearing no. Bail Appl. 3243/2021 which was dismissed as withdrawn
vide order dated 13.01.2023.
7. Learned counsel for the petitioner submits that the present accused has
been arrested merely on the disclosure statement of co-accused.
Learned counsel is heavily relying upon the judgment of the Hon’ble
Supreme Court in the Supreme Court legal aid committee representing
Undertrial Prisoners V. Union of India &Ors. (1994) 6 SCC 731.
8. Learned counsel for the applicant further submits that co-accused
Durgesh has already been granted bail by this court vide order dated
24.05.2023.
9. Learned ASC has opposed the bail application and has submitted that
there is a huge recovery from the present petitioner. Learned APP
submits that evidence that has appeared against Ugo Geoffery Franklin
is as under:
i. Statements of recovery witnesses regarding handing over
of 01kg heroin by Ezeh to Ugo Geoffery Franklin to
deliver the same to Shabir Ahmed Bhat at spot and
recovery of 01 kg heroin from Ugo Geoffery Franklin on
01/12/2015.
ii. Disclosure statements of accused persons and in
pursuant of those disclosure further recoveries and
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arrests were effected accordingly including Ugo Geoffery
Franklin.
iii. Mobile CD Connectivity of accused Ugo Geoffery
Franklin through his mobile numbers 9958236943 and
7838943486 with accused Shabir Ahmed Bhat upon his
mobile number 9555631912
iv. Statement of PW to prove impersonation, forgery etc
v. FSL Report regarding herein
vi. Report of voice exhibits which will prove voice of
accused with his voice in intercepted calls. As per FSL
report voice of accused Ugo Geoffery Franklin has been
matched with intercepted calls.
vii. Intercepted calls of accused Ugo Geoffery Franklin with
accused Shabir Ahmed Bhat on mobile no 9555631912
(remained on interception and used by Shabir Ahmed
Bhat) regarding drug trafficking activities.
16. Learned ASC submits that there is sufficient evidence against the
applicant and the accused, being a foreign national, if released on bail
may not be available for facing the trial.
17. It is pertinent to mention here that the accused is in custody since
19.11.2015 and thus, admittedly has undergone custody for
approximately 7 Years.
18. The Hon’ble Supreme Court in Supreme Court legal aid committee
representing Undertrial Prisoners V. Union of India &Ors. (1994) 6
SCC 731 are detailed as under:
i. Where the undertrial is accused of an offence(s) under
the Act prescribing a punishment of imprisonment of five
years or less and fine, such an undertrial shall be released
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on bail if he has been in jail for a period which is not less
than half the punishment provided for the offence with
which he is charged and where he is charged with more
than one offence, the offence providing the highest
punishment. If the offence with which he is charged
prescribes the maximum fine, the bail amount shall be 50%
of the said amount with two sureties for the like amount. If
the maximum fine is not prescribed bail shall be to the
satisfaction of the Special Judge concerned with two
sureties for the like amount.
ii. Where the undertrial accused is charged with an
offence(s) under the Act providing for punishment exceeding
five years and fine, such an undertrial shall be released on
bail on the term set out in (i) above provided that his bail
amount shall in no case be less than Rs 50,000 with two
sureties for like amount.
iii. Where the undertrial accused is charged with an
offence(s) under the Act punishable with a minimum
imprisonment of ten years and a minimum fine of Rupees
one lakh, such an undertrial shall be released on bail if he
has been in jail for not less than five years provided he
furnishes bail in the sum of Rupees one lakh with two
sureties for like amount.
iv. Where an undertrial accused is charged for the
commission of an offence punishable under Sections 31 and
31-A of the Act, such an undertrial shall not be entitled to
be released on bail by virtue of this order…...”, The
directives in clauses (i), (ii) and (iii) above shall be subject
to the following general conditions:
(i) The undertrial accused entitled to be released on bail
shall deposit his passport with the learned Judge of the
Special Court concerned and if he does not hold a passport,
he shall file an affidavit to that effect in the form that may
be prescribed by the learned Special Judge. In the matter
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case the learned Special Judge will, if he has reason to
doubt the accuracy of the statement, write to the Passport
Officer concerned to verify the statement and the Passport
Officer shall verify his record and send a reply within three
weeks. If he fails to reply within the said time, the learned
Special Judge will be entitled to act on the statement of the
undertrial accused;
(ii) the undertrial accused shall on being released on
bail present himself at the police station which has
prosecuted him at least once in a month in the case of those
covered under clause (i), once in a fortnight in the case of
those covered under clause (ii) and once in a week in the
case of those covered by clause (iii), unless leave of absence
is obtained in advance from the Special Judge concerned;
(iii) the benefit of the direction in clauses (ii) and (iii)
shall not be available to those accused persons who are, in
the opinion of the learned Special Judge, for reasons to be
stated in writing, likely to tamper with evidence or influence
the prosecution witnesses;
(iv) in the case of undertrial accused who are
foreigners, the Special Judge shall, besides impounding
their passports, insist on a certificate of assurance from
the Embassy/High Commission of the country to which the
foreigner-accused belongs, that the accused shall not leave
the country and shall appear before the Special Court as
and when required;
(v) the Special Judge will be at liberty to cancel bail if
of the above conditions are violated or a case for
cancellation of bail is otherwise made out; and
(vi) after the release of the undertrial accused pursuant
to this order, the cases of those undertrials who have not
been released and are in jail will be accorded priority and
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the Special Court will proceed with them as provided in
section 309 of the code.”
(vii) the undertrial accused shall not leave the area in
relation to which the Special Court is constituted except
with the permission of the learned Special Judge;
(viii) the undertrial accused may furnish bail by
depositing cash equal to the bail amount;
19. It is pertinent to mention here that this court has granted bail in a catena
of similar cases. Reliance can be placed upon bail application no.
1724/2021 titled Anil Kumar@Nillu Vs Stateand Gurmito vs. CBI bail
application no. 1621/2022 dated 20.07.2022.
20. In the case of foreign nationals also the coordinate bench of this court
in Ejike Jonas Orji vs NCB in bail application no. 997/2022 vide a
detailed order dated 13.06.2022 has granted the bail.
21. It is relevant to note that the applicant was arrested on 01.12.2015 and
has been in judicial custody and has been facing trial for the offence
punishable under Sections 419/468/471/474/489 Cr.P.C. and Sections
18/21/22/25/29/61/85 NDPS Act and Section 14 of Foreigners Act.
22. It is also pertinent to mention here that the punishment prescribed
under this provision is Rigorous Imprisonment for a term which shall
not be less than 10 years but may extend to 20 years along with the fine
under NDPS Act.
23. It is also relevant to mention here that the Hon’ble Apex Court in
Satyender Kumar Antil also inter alia held as under:
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“ 86. Now we shall come to category (C). We do not wish to
deal With individual enactments as each special Act has got
an objective behind it, followed by the rigor imposed. The
general principle governing delay would apply to these
categories also. To make it clear, the provision contained in
Section 436A of the Code would apply to the Special Acts
also in the absence of any specific provision. For example,
the rigor as provided under Section 37 of the NDPS Act
would not come in the way in such a case as we are dealing
with the liberty of a person. We do feel that more the rigor,
the quicker the adjudication ought to be. After all, in these
types of cases number of witnesses would be very less and
there may not be any justification for prolonging the trial.
Perhaps there is a need to comply with the directions of this
Court to expedite the process and also a stricter compliance
of section 309 of the code”
24. Therefore, it is directed that the applicant is admitted to bail subject to
the following conditions:
i. That the applicant shall furnish a personal bond of the sum
of Rs. 1 Lakh with two sureties of the like amount to the
satisfaction of the Special Court/Duty Magistrate.
ii. The applicant is directed to deposit his passport to the
Special Court.
iii. A certificate of assurance stating that the accused will not
leave the country until the conclusion of the trial and that he
will appear on every date before the Special Court unless
explicitly exempted, will be sought from the High
Commission of Nigeria, New Delhi. In the absence of such a
certificate, the applicant will not be released on bail.
iv. At 11:00 am, every Monday; the applicant shall present
himself to the NCB office and shall be released upon
completion of formalities within 1 hour.
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v. The applicant’s residence will remain the same as that
which is verified by the IO and is mentioned on the charge
sheet. If the same changes, the applicant is required to give
prior intimation of the same to the IO and Special Court.
vi. The applicant is required to provide his mobile number to
the IO and to always keep the same operational.
vii. There will be no direct or indirect tampering of the evidence
by the applicant.
viii. There will be no contact attempted by the applicant with the
prosecution witnesses; nor will be acting in a manner
prejudicial to the trial.
ix. If any offence is registered against the applicant whilst he is
on bail; the NCB may apply for cancellation of the
applicant’s bail to the Special Court.
x. In case of any violation of the conditions, the special court
may cancel the applicant’s bail.
xi. The observations made in this order are for the purpose of
the present bail application and does not prejudice the
parties at trial .
25. Learned Trial Court may also impose any other condition as required in
the Supreme Court legal aid committee representing Undertrial
Prisoners V. Union of India &Ors. (1994) 6 SCC 731 (Supra)
26. The application stands disposed of with the aforementioned directions.
27. A copy of this order is directed to be electronically communicated to
the concerned Jail Superintendent.
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Signing Date:03.08.2023
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DINESH KUMAR SHARMA, J
JULY 31, 2023/AR
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