IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th January, 2022
Pronounced on: 25th January, 2022
BAIL APPLN. 3861/2021
MUHSIN ALI โฆ Petitioner
Through: Mr. Sameer Rohatgi and Mr.
Manohar Malik, Advocates
Versus
NARCOTICS CONTROL BUREAU โฆ Respondent
Through: Mr. Subhash Bansal, Senior
Standing Counsel with Mr.
Shashwat Bansal, Advocate.
CORAM: HONโBLE MR. JUSTICE CHANDRA DHARI SINGH
J U D G M E N T
CHANDRA DHARI SINGH, J.
1. The present petition has been preferred under Section 439 of the
Code of Criminal Procedure, 1973 (hereafter, โCodeโ) for seeking regular
bail in FIR bearing No. VII/41/DZU/2021 registered under Sections 8(C),
21(C), 23 and 29 of Narcotics, Drugs and Psychotropic Substances Act
(hereafter, โNDPS Actโ) registered with Narcotics Control Bureau, Delhi.
2. The factual matrix in the instant case, as submitted by the
prosecution, is as under:
a) On 27th August 2020, the Narcotics Control Bureau
(hereinafter โNCBโ) 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 1st
September 2020, search operation was conducted, and the
investigating team seized 970 grams of heroin and collected
samples of substance found in parcels bearing Airway Bill No.
PPA32016193974 (hereinafter โimpugned parcelโ);
b) The investigating team conducted a controlled delivery of
subject parcel, which was received by another co-accused namely
Wahid Ali. On 2nd September 2020, Wahid Ali was arrested and his
statement under Section 67 of the 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 โsecond parcelโ),
which he disclosed was due to arrive on 4th September 2020;
c) On 4th September 2020, another search was conducted by the
NCB team at Hotel Shalimar near IGI Airport where Petitioner 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. Another search was
conducted at the house of the Petitioner in Uttam Nagar, New
Delhi. Nothing was recovered in the search, however certain
BAIL APPLN. 3861/2021 Page 3 of 17
information was disclosed by the Petitioner, which was recorded
and thereafter, he was arrested by the Investigating Officer;
d) On 4 th September 2020, a disclosure report was prepared
wherein the petitioner had disclosed that he was supposed to
receive the second parcel and was required to deliver it to Frankโs
Girlfriend, 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;
e) Upon being apprehended, she disclosed that a person named
Emmanuel Williams who would be receiving the first parcel from
Wahid Ali. Bethlehem further disclosed that she was working with
Peter Chibuzor alias Frank and Emmanual Williams;
f) The Investigating Officer along with Bethlehem reached the
Church at Sector 9, Dwarka in Ambarahi Village where Emmanual
Williams came to collect the parcel from Bethlehem. Emmanual
Williams came near Bethlehem and enquired about the parcel, at
which point the NCB Team apprehended him. Emmanual Williams
disclosed that he had come to receive the parcel at the instance of
his friend Peter Chibuzor@Frank who resides in Greater Noida;
g) The Investigating Officer served the Notice under Section 67
of the NDPS Act to Emmanual Williams to tender his voluntary
statement and the statement of the co-accused Emmanual Williams
was recorded on 4th September 2020. He disclosed that he had been
doing the business with Peter and also disclosed that he knew
Bethlehem who was Peterโs girlfriend and was getting forged IDโs
for him;
h) On 5th September 2020, Bethlehem & Emmanual were both
arrested. Subsequently on 15th September 2020, Peter was arrested
at the instance of Bethlehem and his disclosure statement was
recorded. He disclosed his drug business relations with Bethlehem
& Emmanual. On 17th September 2020, the disclosure statement of
co-accused Peter was recorded again.
3. On 1st March 2021, Intelligence Officer Mr. R.K. Maurya 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 Judge, Patiala
House Courts and subsequently on the same day cognizance was taken by
the ASJ against all accused persons including the petitioner.
4. On 9th April 2021, the Trial court vide its order granted bail to the
co-accused namely Mohd. Hanif Munasir E.K. and Shahjahan who
arrested along with the petitioner and who were present at time of search
and recovery of 5gm of Heroin.
5. On 1st July 2021, the petitioner filed First Bail Application which
was rejected on 25th September 2021 by the court of Sh. A K Jain, ASJ,
Special Judge, NDPS Act.
6. Investigation in the present case is completed and supplementary
chargesheet was filed on 8th April 2021 against the petitioner and other coaccused under Section 8(c)/21(c)/23/29 of the NDPS Act.
7. Mr. Sameer Rohtagi, Learned Counsel for the Petitioner made the
following submissions:
a. Firstly, the bail should be granted on the ground of parity in
terms of other co-accused who were arrested from the hotel room,
where a recovery of 5 grams of heroin was made on 4 th September
2020. The Trial Court vide its order dated 9 th April 2021, has
granted bail to three other accused namely Mohd. Hanif, Munaser
E.K. and Shahjahan;
b. Secondly, he argued that the statement of other co-accused
and the accused recorded under Section 67 of the NDPS Act is
inadmissible and cannot be relied upon to implicate the Petitioner.
To buttress this argument, he placed reliance on the judgement of
Toofan Singh v. State of Tamil Nadu, AIR 2020 SC 5592;
c. Thirdly, it was argued that the contraband of five grams was
not in the โconscious possessionโ or โconstructive possessionโ of
the Petitioner but was recovered from a bag inside a hotel room
where the Petitioner was residing along with the three other
accused;
d. Fourthly, even if the recovery of five grams is taken into
account, it would tantamount to small quantity and not commercial
quantity for which the Petitioner can be sentenced only for a
maximum period of one year, out of which he has already
undergone for four months in custody;
e. Fifthly, it was argued that it is wholly wrong to contend that
the impugned parcel was recovered at the instance of the Petitioner.
There is no evidence against the petitioner to implicate him with the
alleged offences and the prosecutionโs case solely rests on the
disclosure statement of co-accused Wahid Ali, Mohd. Hanif, Mohd.
Shahjahan, Munasir E.K and there has been no recovery of any
contraband goods from the petitioner;
f. Sixthly, it was submitted that the petitioner has never avoided
any investigation or court order and has not kept himselBAIL APPLN. 3861/2021 Page 6 of 17f away from arrest by the NCB officer; and
g. Lastly, it was submitted that the petitioner was arrested on 4th
September 2020 and since then is in Judicial custody i.e., a period
of more than 12 months.
8. Mr. Subhash Bansal, Sr. Standing Counsel, appearing for the
respondent department has vehemently opposed the instant bail petition.
With reference to the confessional statement of the petitioner, it is
submitted that the petitionerโs statement was not statement simpliciter but
led to the discovery of the impugned parcel, thus is admissible. On the
ground of parity, he argued that the other co-accused who were released
on bail were not implicated in other recoveries. On the other hand, the role
of the Petitioner is ascribed in other recoveries. It is his argument that the
sequence of events prima facie establishes conspiracy on the part of
petitioner. It is also submitted that the Petitioner is part of a drugsyndicate indulging in illegal business of drug-trafficking and thus is not entitled to bail on the contours of Section 37 of the NDPS Act. He also
placed reliance on the following observation of the Special Judgeโs order
dated 25th September 2021 by which the bail application of the petitioner
was refused:
โMuhsin Ali, Mohd. Shahjahan, Munasir and Mohd.
Haneef were apprehended and from the bag of
accused Muhsin Ali 5 gm of heroin was recovered.
Muhsin Ali also corroborated story alleged by the
accused Wahid Ali and their dealings in drug with
foreign Nigerians. Thereafter at his instance, one
more parcel containing 980 gm of heroin was
recovered. The parcel already seized by NCB is to be
delivered to Bethlehem and when she came to take the
delivery, she was also apprehended. Thereafter, at his
instance, accused Emmanuel Williams was also
apprehended. From both those accused also the
parcels of contraband were recovered. Co-accused
Frank was also apprehended later on. Entire
syndicate dealing in drug supply is apprehended and
found to be doing the business continuously. The
knowledge of number of parcels from co-accused do
not in any manner discredit the delivery of parcel to
this accused at this stage, on the other hand, suggests
the factum of conspiracy. The mobile phone
containing whatsapp chats also connects this accused
with accused Wahid Ali and Frank. There is an
explicit recovery of contraband parcels from present
accused thus there is statutory presumption u/s 35 and
54 NDPS Act against the accused persons. The
credibility of prosecution case cannot be adjudged at
this stage.
As far as parity is concerned, co-accused Mohd.
Shahjahan, Munasir and Mohd. Haneef were granted
bail as do not found to have been connected with other
recoveries at the instance of accused Munasir or other
accused persons and this fact is squarely noted in the
bail orders dated 09.04.2021 and 23.04.2021 that the
grant of bail to these accused is not to be considered
as parity for other accused.โ
Based on the aforesaid observations, it is submitted that the
arguments on the ground of parity have already been dealt with by the
Special Judge in detail and there is nothing illegal or erroneous in the said
Order, and in light of the mandate of the NDPS Act, bail should not be
granted.
9. Heard learned counsels for the parties and perused the record,
specifically the averments made in the petition, the contents of the FIR,
the Status Report filed by the State and the Bail Order dated 25th
September 2021.
10. In light of the aforesaid, it is pertinent to refer and analyze the
provisions and objective of the NDPS Act. Section 37 of the Act reads as
under:
37. Offences to be cognizable and non-bailable. โ
(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 1
[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–
(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 sub-section (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. In view of the gravity of the consequences of drug trafficking, the
offences under the NDPS Act have been made cognizable and nonbailable. The Section does not allow granting bail for offences punishable
under Section 19 or Section 24 or Section 27A and for offences involving
commercial quantity unless the two-fold conditions prescribed under the
Section have been met. The conditions include:
a) hearing the Public Prosecutor; and
b) Satisfaction of the court based on reasonable grounds that the
accused is not guilty of the offence and that he is likely to not
commit an offence of a similar nature.
12. The fetters on the power to grant bail does not end here, they are
over and above the consideration of relevant factors that must be done
while considering the question of granting bail. The court also needs to be
satisfied before grant of bail about the scheme of Section 439 of the Code.
Thus, it is evident that the present section limits the discretion of the court
in matters of bail by placing certain additional factors over and above,
what has been prescribed under the Code.
13. The contours of Section 37 of the Act have been analysed by the
Honโble Supreme Court in the case of Union of India v. Ram Samujh
(1999) 9 SCC 429. In this case, the Apex Court adjudged the validity of
the order on bail granted by the High Court in a case registered under the
Act. The Honโble Court extracted the Statement of Objects and Reasons
for the introduction of amended Section 37 of the Act through Bill No.
125 of 1988. It is relevant to extract those for the present analysis, which
reads as:
โ6. The aforesaid section is incorporated to achieve
the object as mentioned in the Statement of Objects
and Reasons for introducing Bill No. 125 of 1988
thus:
โEven though the major offences are nonbailable by virtue of the level of punishments,
on technical grounds, drug offenders were
being released on bail. In the light of certain
difficulties faced in the enforcement of the
Narcotic Drugs and Psychotropic Substances
Act, 1985, the need to amend the law to further
strengthen it, has been felt.โ(emphasis supplied)
7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
case, the accused commits murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or in
inflicting death-blow to a number of innocent young
victims, who are vulnerable; it causes deleterious
effects and a deadly impact on the society; they are a
hazard to the society; even if they are released
temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. Reason may be large
stake and illegal profit involved. This Court, dealing
with the contention with regard to punishment under
the NDPS Act, has succinctly observed about the
adverse effect of such activities in Durand Didier v.
Chief Secy., Union Territory of Goa [(1990) 1 SCC 95
: 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24)
โ24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs and
psychotropic substances into this country and
illegal trafficking in such drugs and substances
have led to drug addiction among a sizeable
section of the public, particularly the
adolescents and students of both sexes and the
menace has assumed serious and alarming
proportions in the recent years. Therefore, in
order to effectively control and eradicate this
proliferating and booming devastating menace,
causing deleterious effects and deadly impact
on the society as a whole, Parliament in its
wisdom, has made effective provisions by
introducing this Act 81 of 1985 specifying
mandatory minimum imprisonment and fine.โ
14. Thus, what is evident from the above is that the offences prescribed
under the Act are not only a menace to a particular individual but to the
entire society especially, the youth of the country. Such offences have a
cascading effect and are in vogue these days, thus destroying the
capabilities and lives of a substantial chunk of the population and trend
has been growing over the years. Thus, to prevent the devastating impact
on the people of the nation, Parliament in its wisdom deemed it fit to
introduce stringent conditions for grant of bail under the Act. The Court
must stay mindful of the legislative intent and mandate of the Act while
considering the question bail in such matters.
15. As far as condition under Section 37(b)(i) is concerned, there is no
ambiguity in its interpretation. It gives effect to the doctrine of audi
alteram partem. Since the crime is an act against the society, the
legislature has contemplated that the Public Prosecutor must be given an
opportunity to oppose a bail application under the Act. Additionally,
under Section 37(b)(ii) of the NDPS Act, the court is not required to be
merely satisfied about the dual conditions i.e., prima facie opinion of the
innocence of the accused and that the accused will not commit a similar
offence while on bail, but the court must have โreasonable groundsโ for
such satisfaction.
16. The term โreasonable groundsโ under Section 37(b)(ii) has been
interpreted by the Honโble Supreme Court in the case of Union of India v.
Shiv Shanker Kesari, (2007) 7 SCC 798. It was a case where an appeal
was preferred against the order granting bail under the NDPS Act by the
High Court. The prosecution alleged that the raiding party seized nearly
400 kgs of poppy straw from the possession of the accused therein. The
special court rejected the bail while the High Court granted the bail on the
ground that the recovery was not from the exclusive possession of the
accused, but other family members were also involved. The Supreme
Court set aside the order granting bail. In this context, it interpreted
โreasonable groundsโ under Section 37 of the Act, as under:
โ7. The expression used in Section 37(1)(b)(ii) is
โreasonable groundsโ. The expression means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the
accused is not guilty of the offence charged and this
reasonable belief contemplated in turn points to
existence of such facts and circumstances as are
sufficient in themselves to justify recording of
satisfaction that the accused is not guilty of the offence
charged. The word โreasonableโ has in law the prima
facie meaning of reasonable in regard to those
circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult to
give an exact definition of the word โreasonableโ.
17. Thus, the term โreasonable groundsโ is not capable of any rigid
definition, but its meaning and scope will be determined based on the
surrounding facts and circumstances of each case. Thus, what may be
reasonable in one set of facts may not be reasonable in another set of
facts. However, the standard of satisfaction in such cases is more than
mere satisfaction on a prima facie opinion. Thus, the court before
exercising its discretion for granting the bail must record the reasonable
grounds before granting bail to the accused.
18. The Supreme Court recently in the case of Union of India v. Md.
Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with
respect to Section 37 of the Act. After analysing the previous decisions of
the Honโble Supreme Court, the court prescribed the following test for
granting bail under Section 37 of the NDPS Act:
โ20. Based on the above precedent, the test which the
High Court and this Court are required to apply while
granting bail is whether there are reasonable grounds
to believe that the accused has not committed an
offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb
the menace of drug-trafficking in the country,
stringent parameters for the grant of bail under the
NDPS Act have been prescribed.โ
19. Thus, the court must be conscious about the mischief that is sought
to be curbed by the Act and the consequences that might ensue if the
person accused of the offence under the Act is released on bail. The court
ought to be satisfied on the basis of reasonable grounds discernible from
the facts and circumstances that the Petitioner is not guilty of offences that
the accused is charged with. Additionally, the court also needs to be
satisfied that the person so released will not commit the offence while
being on bail. Both the conditions are interlinked because the legislature
intends that in cases where there is a possibility of commission of this
grave offence under the Act, the person need not be released. It is so
because if the person is released, he is most likely to repeat the offence,
thus impacting the society at large. Thus, to not give any leeway to the
accused, the court has to be satisfied about the dual conditions on
reasonable grounds.
20. In the instant case, the case of the Petitioner and his role in the
entire sequence of events is not as simple as has been projected during the
entire course of arguments by learned counsel for the petitioner. He is not
merely arrested for the small quantity of contraband weighing five grams
but has been implicated for his role as being a part of a larger drug
syndicate. However, the co-accused who have been released on bail were
charged with offences of smaller quantity, to which the rigors of Section
37 did not apply. However, the Petitioner is charged for commercial
quantity and his bail application needs to be decided as per Section 37 of
the Act. Thus, the ground of parity for seeking bail is erroneous and is
rejected at the very outset.
21. Further, the statement of the Petitioner was not a mere statement
but led to the discovery of the first parcel containing 980 grams of Heroin
which is a commercial quantity. Thus, the statement of the accused can be
made admissible in accordance with Section 27 of the Indian Evidence
Act, 1872. The judgement of Toofan Singh (Supra) will not apply in the
instant case because it was a case where the Honโble Supreme Court held
that the confessional statement of an accused to the officers under Section
53 of the Indian Evidence Act will not be admissible as evidence.
However, Section 27 serves as a proviso to Section 25 of the Indian
Evidence Act and states that the statement can be made admissible, if such
statement leads to a discovery of fact. In the present case, the statement of
the Petitioner led to the discovery of the parcel. Thus, Section 25 and the
case of Toofan Singh (Supra) will not be applicable in the present case. If
the argument of the Petitioner is accepted, it would render the provisions
of Section 27 of the Indian Evidence Act otiose, which can never be
allowed.
22. Other co-accused have also ascribed the role of the petitioner,
where he was responsible to deliver the packages containing Heroin to
several persons including certain Nigerian citizens. Thus, the accused in
these circumstances and at this stage cannot be presumed to be โnot guiltyโ
of the offence that he is charged with. Additionally, as the Special Judge
has rightly observed the presumption under Section 35 and 54 of the
NDPS Act are against the Petitionerโs innocence.
23. Proceeding to the application of Section 37 in the instant matter, the
Public Prosecutor has been heard who has vehemently opposed the bail
petition with reasons. With respect to the second condition prescribed
thereunder, this Court is satisfied that there are no reasonable grounds,
based on the analysis of the provision in the foregoing paragraphs and its
application to the facts of the case, for this Court to believe that the
Petitioner is not guilty of the offence that he has been charged with. Since
this court is not satisfied on this ground, there is no question to consider
that the accused will not commit the offence while on bail.
24. In view of the aforementioned facts, circumstances, analysis and
reasoning, keeping in mind the legal provisions and the underlying intent
as well as the mischief that is sought to be curbed by the NDPS Act, this
Court is of the considered view that the conditions stipulated under
Section 37 of the Act are not satisfied and there are no โreasonable
groundsโ to presume the accused as not being guilty of the offence. Thus,
this Court is not inclined to allow the instant Bail Application as being
devoid of any merit and hence, liable to be dismissed.
25. Accordingly, the instant Bail Application stands dismissed.
26. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
January 25, 2022