TaxTMI 
TaxTMI 
2022 (11) TMI 637
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....e not seized in accordance with the law and sampling was not done as per the prescribed procedure; the forensic report does not state the percentage of Cocaine contained in the recovered contraband and the only evidence qua the petitioner is her alleged confessional statement, which is not admissible. 1.3 The bail application filed by the petitioner was dismissed on 03.03.2022. It has been submitted that in view of the various judgements of the Apex Court and the High Courts, the petitioner is entitled to bail. She has no criminal antecedents and her conduct in jail is satisfactory; she has never been convicted by any Court of law, so it has been prayed that she may be released on bail during the pendency of trial and she is ready to abide by all the conditions to be imposed by this Court. 2. Notice was issued. 3. The respondent has filed reply. 3.1 In the reply, the circumstances under which the applicant was arrested, have been mentioned. It has been stated that the applicant had made her voluntary statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), wherein she had admitted the recovery of the drugs and other incriminatin....
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....ing that 'quantitative analysis of the samples could not be carried out for want of facilities'. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act." It is to be noted that in the same paragraph, the following is also mentioned regarding the case: "Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16th March, 2020. Reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited." 6.2 The petitioner has also relied on the judgement of Himachal Pradesh High Court in the matter of 'State of H.P. v. Jugal Kishore 2012 SCC Online HP 2979' wherein t....
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....SCW 1480) it has been held that the expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although not an expert may form its own judgement on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted it is not the opinion of the medical officer but of the Court. In the present case the materials inclusive of the data have not been mentioned in the report. In Section 2(v) of the Act 'coca derivative' has been defined. In clause (d) all preparations containing more than 0.1 per cent of cocaine has been mentioned. The contraband alleged to have been recovered from possession of the appellant was in form of powder. Section 2(xvi) defines 'opium derivative'. In clause (d) heroin has been mentioned. According to the prosecution case the contraband was heroin. Clause (e) of Section 2(xvi) of the Act says 'all preparations containing more than 0.2 per cent of morphine or containing any diacerylmorphine'. If the contraband is taken to be coca derivativ....
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....ct it has to be proved that the substance recovered from the possession of the appellant is a 'opium derivative' as per the definition of Section 2(xvi)(e) of the Act. As a result of the discussions hereinabove the leave to appeal lacks merit and deserves to be dismissed. Consequently, leave is refused and the leave to appeal is, dismissed." 6.5 Reliance has been also placed on the judgement of the Punjab and Haryana High Court in the matter of 'Atma Singh v. State of Punjab 2016 SCC Online P&H 5520'. This is again a challenge to the final judgement of conviction and order of sentence passed by the learned Special Judge in the case. It has been held as under: "18. There appears to be substance in the statement of learned counsel for the appellant when he submitted that neither the Executive Magistrate nor the Gazetted Officer, was summoned at the spot to witness the recovery. While discussing this issue, this Court is conscious of the fact that non-compliance of Section 50 of the NDPS Act, would be mandatory only when the contraband is recovered from the person of the accused. But in view of the backdrop and the shortcomings in the prosecution case, th....
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.... the possession of the petitioner herein and 125 grams was seized from the possession of accused No.2. The sample test was subjected to chemical analysis and as per the FSL report, it was a combination of Paracetamol with cocaine. The percentage of the cocaine is not ascertained. Accused No.2 is on bail vide order of this Court dated 8.12.2016 in Crl.P. No.8239/2016. 3. The investigation since complete, there is no impediment to allow this petition. 4. The petition is allowed. Petitioner is enlarged on bail in Crime No.220/2016 of the respondent/Police, subject to the following conditions: (i) He shall execute a self-bond for a sum of Rs.2,00,000/- with one local surety for the like-sum to the satisfaction of the concerned Court. (ii) He shall mark his attendance before the Investigating Officer on every alternate Friday during the office hours till conclusion of the trial. (iii) He shall not indulge in activities as alleged against him." 6.7 Learned counsel for the petitioner has also relied upon the judgement in the matter of 'Supreme Court Legal Aid Committee representing under trial prisoners v. Union of India and others (1994) 6 ....
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....e 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 said accused shall not leave the country and shall appear before the Special Court as and when required. (v) the undertrial accused shall not leave the area in r....
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.... years of actual imprisonment out of total sentence of 10 years. It was observed that in all probability, the entire sentence would have been undergone by the time the appeal is heard, so under those circumstances, the remaining sentence of the petitioner was suspended. 6.11 Reliance is also placed in the matter of 'Baba Fakruddin Sheikh @ Fakru v. The State' in Bail Application No.334/2021, decided by a coordinate bench of this Court on 25.03.2021. This order was challenged before the Hon'ble Supreme Court in the matter of 'Baba Fakruddin Sheikh @ Fakru v. The State (NCT of Delhi), Special Leave to Appeal (Crl.) No.13/2022 decided on 16.02.2022 wherein the Hon'ble Supreme Court keeping into consideration the fact that the petitioner had suffered incarceration of 7 years and 6 months and there was no possibility of trial concluding in the near future, bail was granted to the petitioner. 6.12 Reliance has been also placed upon Bail Application No.997/2022, titled as 'Ejike Jonas Orji v. Narcotics Control Bureau' decided by a coordinate bench of this Court on 13.06.2022. In the said case, the petitioner was in custody for 8 years; 6 PWs were yet to be examined. In this judgemen....
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....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 u....
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....cused 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. 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. ....
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....t 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. 8.1 In view of the above observations, the bail application of the petitioner is to be considered as this judgement lays down the latest law of the land on the point of bail. 9. In the present case, de hors the statement recorded under Section 67 of the NDPS Act, the following factors are taken into account: 9.1 Recovery of Cocaine from the possession of the petitioner; 9.2 Recovered Cocaine falls in commercial quantity; 9.3 Petitio....