TaxTMI 
TaxTMI 
2022 (6) TMI 1331
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.....05.2014 to the effect that a parcel lying at DHL Express Pvt. India Ltd. 40 Okhla Estate, New Delhi, was suspected to contain narcotic substances. The information revealed that the parcel had been booked from ANS Express Services Pvt. Ltd. 413 Sant Nagar, East of Kailash, New Delhi under AWB No. 5546780993, with Liberia (Africa) as the destination. B. An NCB team reached the DHL office at 2:30 PM on 26.05.2014. In the presence of two independent witnesses, the parcel bearing AWB No. 5546780993 was opened, and contained ladies' clothes and accessories, including a packet of 12 "thread piece rolls". One of the thread piece rolls was found to have a cavity, which contained an off white coloured powder in a roll. A small quantity of the powder was tested with the help of field-testing kit, and gave positive result for heroin. The remaining 11 thread piece rolls were thereafter opened, and contained similar cavities with off white coloured powder. The off white coloured powder from each of the 11 thread piece rolls was tested with the field-testing kit, and it also gave positive result for heroin. C. The powder from the 12 cavities, having the same colour, texture and properties,....
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....ouse at the time of the search. Both of them were served with notices under Section 50 of the Act, but declined to be searched before a Gazetted Officer or a Magistrate. On their personal search, nothing incriminating was recovered from the two individuals. I. On searching the house, an "Orange coloured lehenga" was found on a table in the first room of the house. Some substance was found to be concealed/stitched inside the layers of the gotta of the lehenga. It was cut open, and found to contain a tube-shaped transparent polythene, which contained off white coloured powder. The powder was tested with DD kit, and gave positive result for heroin. Upon cutting all the layers of gotta, 70 such tubes were found, each of which contained similar off white coloured powder. J. A small quantity of the powder was taken from each of the tubes, and was subsequently tested with the DD kit. Each of the samples gave positive results for heroin. K. The powder from all the tubes, having the same colour, texture and properties, was thereafter mixed, and transferred into a transparent packet, which was found to weigh 265 grams. L. Two samples of 5 grams each were drawn, and put in polythe....
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....ral Revenues Control Laboratory, New Delhi [hereinafter, "CRCL"]. On examination of the alleged contraband by the CRCL, the substance recovered from the parcel was found positive for heroin, as was one of the samples from the residence of the applicant. The other sample which was recovered from the house of the applicant was found positive for charas. 3. As evident from the above, the applicant has been accused of conscious possession of at least 265 grams of heroin (which constitutes a commercial quantity), and 175 grams of charas (which constitutes an intermediate quantity). Although the prosecution also attributes to him the 200 grams of heroin recovered from the parcel (which constitutes an intermediate quantity), the accused disputes the said possession. In view of the fact that, at the minimum, the case against the applicant involves conscious possession of 265 grams of heroin, which is a commercial quantity of narcotics under the Act, there is no dispute that the rigors of Section 37 of the Act are attracted to the present case. 4. The applicant has been in custody in connection with the case since 03.06.2014, and remains in custody for a period of eight years. 5. T....
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....urt of Calcutta in In Re- Sanawar Ali^4 and by coordinate benches of this Court in Atul Aggarwal vs. Directorate of Revenue Intelligence^5 and in Anil Kumar alias Nillu vs. State^6 Relying upon the aforesaid judgments, Mr. Priyadarshi submitted that the applicant, who has been in custody for eight years, is entitled to be enlarged on bail on the strength of the SCLAC judgment. B. Mr. Priyadarshi relied upon an order of the Supreme Court in Baba Fakruddin Sheikh @ Fakru vs. The State (NCT of Delhi)^7, wherein the applicant therein was denied bail by an order of this Court dated 25.03.2021 in Bail Application No. 334/2021, on the finding that a commercial quantity of contraband had been recovered, and Section 37 of the Act would be attracted. The Supreme Court, however, directed the accused to be enlarged on bail, noting in its order that the petitioner had suffered incarceration for a period of seven years and six months, and that there was no possibility of the trial being concluded in the near future. C. Mr. Priyadarshi submitted on merits that, even taking into account the provisions of Section 37 of the Act, the applicant is entitled to be released on bail. He ....
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....n an offence alleged to have been committed under the Act. D. Mr. Bansal cited the judgment of a coordinate bench of this Court in Bobby Collin vs. Narcotic Control Bureau^14 to submit that, in a similar case under the Act, this Court had declined to release the applicant on bail, despite incarceration for a period of over six years. He pointed out that the Court considered the judgment in Amani Fidel Chris^15, but declined to consider this argument at the stage of bail, particularly because only one prosecution witness remained to be examined. A similar contention was also considered in Anthony Umeh vs. State^16, Naveed Ummer Sheikh vs. Narcotic Control Bureau Through: Shri Mukesh Malik Prosecutor NCB^17 and Bipin Bihari Lenka vs. Narcotic Control Bureau^18. E. Mr. Bansal relied upon the judgments of this Court in Mohd Hanif vs. NCB^19, Emeka Charles Omuka vs. Narcotic Control Bureau^20 and Edwin Emeka Igbowke vs. Narcotics Control Bureau^21 to submit that this Court has refused to grant bail to accused alleged to have committed offences under the Act wherein the contraband seized was in commercial quantity, and that the rigors of Section 37 of the Act will be at....
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....granting of bail." 14. Turning to the question of whether or not the applicant is entitled to be released on bail on the ground of prolonged incarceration as an undertrial prisoner, the SCLAC judgment is of foremost significance in this regard. The petition before the Supreme Court was motivated by the delay in disposal of cases under the Act, particularly involving foreigners. During the proceedings, the scope was expanded to cover all undertrial prisoners who were in jail for offences under the Act for a period of over two years. The Court noted that, despite the provision for trial before Special Courts under the Act, the disposal of cases has taken much longer than originally envisioned. The Supreme Court found that the delay in trial, when read with the stringent provisions of Section 37 of the Act, render the fundamental rights of the accused under Articles 14, 19 and 21 of the Constitution in jeopardy. Although the Court declined to quash the charges against the accused on this basis, it accepted the alternative submission that the accused should be released on bail after a certain period of incarceration, if the trial has been delayed beyond a reasonable time. The Court ....
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....ich 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 relation to which the Special Court is constituted except with the permission of the learned Special Judge; (vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount; (vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and (viii) 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 the Special Court will proceed with them as provided in Section 309 of the Code. 16. We may state that the above are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Court's a power to grant bail under Section 37 of the Act. The Special Court will be free to exercise that power keep....
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....rule in favour of grant of bail, and coming to a conclusion that the delay in the conclusion of the trial was not occasioned by the accused, the High Court granted bail in that case. The Division Bench negatived the contention that SCLAC judgment was intended to be only a "one-time measure", which would have no applicability in the present time. 19. Although the SCLAC judgment has not specifically been applied to the National Capital Territory of Delhi, the following recent decisions of coordinate benches of this Court have applied the principles laid down therein by the Supreme Court:- a. In Atul Aggarwal^27, the Court was considering an application for bail in a case arising under the Act. The accused had been in custody for nine years as an undertrial prisoner. The Court cited the SCLAC judgment to release him on bail. b. In Kartik Dangi vs. State of NCT of Delhi^28, the Court inter alia noticed the decisions of the Supreme Court in SCLAC, Union of India vs. K.A. Najeeb^29, Manoj Kumar Singh^30 and Tapan Das^31, and the judgment of the Division Bench of the Calcutta High Court in Sanawar Ali^32. The Court released the applicant on bail despite the allegation....
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....l ground of rejection of bail was that the trial was at its final stage, with only one prosecution witness remaining to be examined. In Anthony Umeh^45, although the accused had been in custody for more than five years, the Court found that the case of improper sampling was required to be tested during trial and not at the stage of bail. The bail application was, therefore, rejected. In Mohd. Hanif ^46, this Court rejected the bail application of the accused, who had been in custody for about 4 years 9 months on the ground that a previous application for bail had already been rejected by this Court. The case of Emeka Charles Omuka^47 is also not a case of incarceration for the period as laid down in the SCLAC judgment, as the applicant was in judicial custody since 27.12.2019, and the judgment was pronounced on 19.04.2022. In Edwin Emeka Igbowke^48 also, the period of incarceration was of just over four years. In any event, as none of the judgments cited by Mr. Bansal deal with the SCLAC judgment, I am of the view that the recent judgments of coordinate benches of this Court, particularly in Anil Kumar @ Nillu^49, and Ebera Nwanaforo^50, squarely cover the present case. 21. The ....
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....t Kroger^63 and Ebera Nwanaforo^64 conclude this issue against the prosecution. In the SCLAC judgment also, the Supreme Court expressly dealt with the question of grant of bail to foreigners accused under the Act. In any event, in the present case, the undisputed position is that, although the applicant himself is a foreign citizen, he is married to a citizen of India, and has a child who is also resident in New Delhi. I was informed during the course of hearing that his address in Delhi has also been verified by the IO. The applicant can, therefore, be seen to have roots in the society, despite his citizenship status. 24. For the reasons aforesaid, as the applicant has been in custody for eight years already, six PWs are yet to be examined, and on the consideration of the various factors noted above, including the provision of Section 37 of the Act, as interpreted in the above judgments of the Supreme Court and this Court, I am of the view that the applicant is entitled to be released on bail. Conclusion 25. It is, therefore, directed that the applicant herein be admitted to bail in relation to Sessions Case No. 9080/2016, registered by the NCB under Sections 8(c), 20, 21....
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....present bail application, and will not prejudice the parties at trial. 28. The application stands disposed of with the aforesaid directions. 29. A copy of this order be communicated electronically forthwith to the concerned Jail Superintendent for information. Notes 1. The name of the consignor appears to be wrongly noted as "Ashok Kanojia" in paragraph Nos. 20 and 21 of the chargesheet filed by the NCB, which has been placed on record. 2 (1994) 6 SCC 731 3 (2013) 2 SCC 603 4 C.R.M. 9314/2020, decided 27.11.2020 5 Judgment dated 21.12.2021 in BAIL APPL. 2477/2021 6 Judgment dated 21.03.2022 in BAIL APPL.1724/2021 7 Order dated 16.02.2022, in SLP (Crl) No. 13/2022 8 (2021) 4 SCC 1 9 Crl Appeal 1027/2015, decided on 13.03.2020 10 Crl Appeal 755/2016, decided on 13.08.2018 11 Crl Appeal 220/2016, decided on 22.02.2021 12 (1995) 4 SCC 695 13 (2002) 10 SCC 529. 14 BAIL APPL. 812/2021, decided on 19.04.2021 15 Supra (Note 9) 16 BAIL APPL. 851/2021, decided on 06.07.2021 17 BAIL APPL. 3248/2021, decided on 23.11.2021 18 BAIL APPL. 3291/2021, decided on 25.04.2022 19 BAIL APPL. 1339/2021, decided on 12.04.2022 2....