2016 (4) TMI 1062 - HC - Customs

Court denies bail under NDPS Act due to gravity of drug trafficking offense and strong prosecution case.

The court rejected the applicant's bail application under the NDPS Act, citing the seriousness of the offense, substantial evidence of drug trafficking, ... Seeking bail - Consignment of 37 kg of Methamphetamine seized - Applicant is involved in heinous crime of drug paddling - Earlier bail application is rejected upto the Apex Court - Held that:- delay if any in trial is solely attributable to the applicant and other co-accused, for which, no benefit could be granted to the applicant. It is submitted that as many as 16 applications were submitted either for regular, interim, temporary bail and at one stage even trial Court had observed that accused is trying to delay the trial by indulging into frequent applications devoid of merit and, therefore the application for bail is to be rejected. So far as, report received from Central Forensic Laboratory, New Delhi, is concerned it is a case for the trial Court to appreciate the evidence in light of materials available against the accused and at this stage no clean chit can be given to the applicant. Simply because the accused has remained behind the bar for about 4 ½ years and that another report of Central Forensic Laboratory, New Delhi described substances seized by the DRI has no Methamphetamine it cannot be said that the applicant-accused is not involved in the crime where ample material is available for the progress to establish its case before the trial Court. No material exists for this Court to satisfy that there are reasonable grounds for believing that the applicant is not guilty of offence under NDPS Act, and that he is not likely to commit any offence while on bail., That involvement of the applicant in the offence involving commercial quantity, prima facie, stands established by the prosecution and it is not necessary at this stage to discuss merit of the subject in detail as the trial is in progress. Further, allegations levelled against the applicant which also include statement of the applicant recorded under Section 67 of NDPS Act, 1985, who accepted 37 Kgs contraband manufactured in the factory where the applicant was the Managing Director, a case is made out by the prosecution to reject this successive bail application in absence of any merit. Therefore, no case is made out to exercise powers under Section 439 of the Code of Criminal Procedure, 1973 as prayed for. - Decided against the applicant Issues Involved:1. Successive bail application under NDPS Act.2. Re-testing of seized material.3. Evidentiary value of forensic reports.4. Prolonged trial and applicant’s incarceration.5. Allegations and evidence against the applicant.6. Applicability of Drugs and Cosmetics Act, 1940.7. Previous bail rejections and Supreme Court directives.8. Relevance of case laws cited by the applicant.9. Prosecution’s opposition to bail.Detailed Analysis:1. Successive Bail Application under NDPS Act:The applicant sought bail under Sections 22, 23, 24, 25, 27A, 28, 29, 30, and 38 of the NDPS Act. The application was made due to the prolonged trial and the applicant's incarceration for about 4.5 years. The High Court had previously rejected bail applications, and the Supreme Court had directed an expeditious trial with the liberty to seek bail if the trial was not completed within a year.2. Re-testing of Seized Material:The applicant challenged the accuracy of the Directorate of Forensic Science (DFS) Gandhinagar's report, which identified the seized substance as Methamphetamine. The applicant requested re-testing, which was initially denied. However, the Supreme Court later directed reconsideration of the re-testing application. The re-test by Central Forensic Science Laboratory, New Delhi, identified the substance as Mephedrone, not Methamphetamine.3. Evidentiary Value of Forensic Reports:The applicant argued that the DFS report was incorrect and presented contradictory reports from the Haffkin Institution and the Food and Drugs Administration, Maharashtra. The applicant cited legal precedents to assert that the later report from the Central Forensic Laboratory should be considered for granting bail. The court noted that the evidentiary value of these reports would be assessed during the trial.4. Prolonged Trial and Applicant’s Incarceration:The applicant highlighted the prolonged trial and the fact that he had been in jail for about 4.5 years. The court acknowledged the delay but emphasized that the severity of the offense under the NDPS Act and the existing evidence did not justify bail solely based on the duration of incarceration.5. Allegations and Evidence Against the Applicant:The prosecution detailed the seizure of 37 kg of Methamphetamine and additional batches from the applicant's factory. The applicant's involvement in the manufacturing and attempted export of the substance was supported by forensic reports and statements under Section 67 of the NDPS Act. The court found sufficient material for the trial to proceed.6. Applicability of Drugs and Cosmetics Act, 1940:The applicant referenced provisions of the Drugs and Cosmetics Act, 1940, arguing that the case should be considered under this Act. The court maintained that the NDPS Act, being more specific to the nature of the offense, took precedence.7. Previous Bail Rejections and Supreme Court Directives:The court noted that previous bail applications had been rejected up to the Supreme Court level. The Supreme Court had allowed the applicant to seek bail if the trial was not completed within a year, but the court found that the trial was ongoing with substantial evidence against the applicant.8. Relevance of Case Laws Cited by the Applicant:The applicant cited several case laws to support the argument for bail, including decisions on the evidentiary value of forensic reports and the right to challenge government analyst reports. The court found these precedents not directly applicable to the applicant's case under the NDPS Act.9. Prosecution’s Opposition to Bail:The prosecution opposed the bail application, emphasizing the severity of the offense, the applicant's involvement in drug trafficking, and the substantial evidence against him. The court agreed with the prosecution's stance, noting that the applicant's actions had contributed to the trial's delay.Conclusion:The court concluded that the applicant's involvement in a heinous crime under the NDPS Act was sufficiently established by the prosecution. The court found no grounds to believe that the applicant was not guilty or unlikely to commit an offense while on bail. Therefore, the application for bail was rejected.