Prolonged Incarceration of Accused Overrides Statutory Restriction Contained in Section 37(1)(b)(ii) of NDPS Act, rules against DRI: Delhi HC Grants Bail [Read Order]

The Delhi Bench of High Court has granted bail ruling against Directorate of Revenue Intelligence (DRI) holding that the prolonged incarceration of accused would override the statutory restriction contained in Section 37(1((b)(ii) of the the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act.

On 15.04.2013, on the basis of specific information, the officers of the (Directorate of Revenue Intelligence) DRI intercepted a green coloured three-wheeler Mahindra Champion luggage carrier, New Delhi. The vehicle was occupied by Babloo Ram and Anil Kumar, who were running a courier company in the name of Cruze Courier New Delhi. A search of the said vehicle resulted in the recovery substance, suspected to be ‘Methaqualone’, weighing 272.800 kg.

During further investigation, 33.450 kg of white crystalline substance suspected to be ‘Methaqualone’ was recovered and seized from the Office premises of Manu Khosla (the applicant), Magic Vibration India Pvt. Ltd.,and 951.350 kg. substance suspected to be ‘Methaqualone’ was recovered and seized from a white coloured Toyota Fortuner car, owned by one Amit Kumar and his wife.It was alleged that in total, 1257.600 kg of the substance had been recovered and seized from the possession of the present applicant and his co-accused, i.e., Anil Kumar and Amit Kumar.

A complaint for commission of offences under sections 22, 27A, 29 and 30 of the NDPS Act was filed by the DRI on 06.09.2014 against the present applicant,Manu Khosla and co-accused, Anil Kumar and Amit Kumar Singh.

The Special Judge, NDPS, Saket Courts, vide order dated 20.07.2013, granted bail to the present applicant and Amit Kumar (co-accused) under Section 167 of the CrPC, on the ground that the contraband recovered was not covered under the NDPS Act. A single judge of this Court set aside the aforesaid order vide judgement dated 23.09.2014, titled ‘Directorate of Revenue Intelligence v. Anil Kumar’ and directed the applicant and Anil Kumar (co-accused) to surrender before the Trial Court.

The Supreme Court vide order dated 15.12.2014, dismissed the SLP filed on behalf of the applicant. On 03.05.2016, the Special Judge framed charges against the applicant and other co-accused persons under Sections 22(c)/29/30 of the NDPS Act.

Sudhir Nandrajog, on behalf of the petitioner submitted that apart from the confessional statements recorded under Section 67 of the NDPS Act, which were inadmissible in view of the pronouncement of Supreme Court in Tofan Singh v. State of Tamil Nadu 2, the other material relied upon by the prosecution was inconclusive and therefore, the benefit of doubt should be given to the applicant at this stage for grant of bail.

He further submitted that except for Ashok Kumar (PW-6), there was no witness to prove the seizure of the contraband from the office premises of the applicant. Even the case property which was exhibited in the present case was found to be tampered with.

He again drew the attention of the Court to the fact that Ashok Kumar (PW-6), who was the seizing officer of the recovery from the office premises of the present applicant, was not traceable for the last five years.

Satish Aggarwala, on behalf of the respondent submitted that the public witnesses, who have turned hostile, could not be believed at this stage as they have deposed contrary to the documents signed by them at the spot. It was further pointed out that some of the case property had been tampered with, however, the remaining case property had been produced which had not been tampered with and the same was a subject matter of trial to be determined by the learned Special Court.

He also submitted that inasmuch as that after the bail granted to him by the Special Judge was cancelled, the applicant did not surrender and absconded. He was declared a proclaimed offender vide order dated 26.02.2015.

A Single Bench of Justice Amit Sharma observed that in the present case, admittedly, public witnesses cited by the prosecution had turned hostile with regard to the identification of the vehicle from which substantial recovery of contraband was made. The recovery from the office premises of the present applicant, recorded as per the punchnama reflected that apart from the present applicant there were five other people who were signatories to the said panchnama. Out of the aforesaid persons only one person, i.e., Ashok Kumar (PW-6), i.e., seizing officer, had been partly examined by the prosecution and who was admittedly not been traceable for the last five years.

It was also pertinent to note, that all the contraband at the time of initial drawing of the sample while being tested with the drug testing kit was stated to be ‘Methaqualone’. However, the CRCL report with regard to the same was determined to be ‘Ketamine Hydrochloride’ which was a psychotropic substance and ‘Phenylpropanolamine’.

The Bench granted the bail on certain conditions relying upon the recent decisions of the Supreme Court in Rabi Prakash v. The State of Orissa that prolonged incarceration of a person overrides the statutory restriction contained in Section 37(1)(b)(ii) of the NDPS Act.

To Read the full text of the Order CLICK HERE

Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates