David Collin alias Madhubuchi Okoro v. Narcotics Control Bureau

1. This is a petition filed by the petitioner under Section 439 Cr.P.C. seeking regular bail and setting aside of Order dated 31.10.2022 in SC NO. 8522/2016 under Sections 8/21/22/23/29 NDPS Act registered with NCB.

2. In brief the facts of the case are that as per Complaint, two parcels containing narcotic drugs were searched at DHL Office, 71/3, Rama Road, Kirti Nagar, New Delhi and were seized vide panchnama dated 24.07.2015 in the presence of independent witnesses. The seized parcels containing contraband were found to be booked by co-accused Sita @Christina Rozaria in conspiracy with the present petitioner, namely, David Collin @ Madhubuchi Okoro who is the husband of co-accused Sita@Christina Rozaria. The recovery of contraband from the two seized parcels is of 245gms of Heroin from first parcel booked under Airway bill NO. 7185476351 and 200 gms and 225 gms of Heroin from second parcel booked under Airway bill no. 7185476362. In furtherance of investigations, upon search of House at Gali No. 11, KH No. 123/5, B-Block, near 25 foota road, Upper Ground Floor, Sant Nagar, Burari, Delhi which is the residential premises of the petitioner David Collins and co-accused, it led to further recovery of 12 gms of Cocaine and 20 gms of Methamphetamine which was seized vide panchnama dated 26.07.2015. Both the said accused persons were indulged in illegal possession and trafficking of narcotic drugs in commercial quantity. Accordingly, consequent to the recoveries, both the accused persons were arrested on 26.07.2015 and SC No. 8522/2016 under Sections 8/21/22/23/29 NDPS Act was got registered with NCB.

3. I have heard the Ld. Counsel for the petitioner, Ld. Sr. Standing Counsel for NCB and perused the Status Report filed by the NCB.

4. Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 27.07.2015 and has undergone more than 7 years and 6 months. He further submitted that there is no recovery of any commercial quantity of contraband from the petitioner and a search was conducted at the residence of the petitioner which resulted in recovery of 12 grams of Cocaine and 20 grams of Methamphetamin. He further submitted that the petitioner neither had possession of commercial quantity on his person nor on his property. He further submitted that the petitioner has clean antecedents and no purpose will be served by keeping the petitioner in judicial custody. In support of his contentions, Ld. counsel for the petitioner has also placed reliance on S.c. Legal Aid Committee vs. Union Of India [(1994) 6 SCC 731], Amar Singh RamjibhaiBarot vs. State of Gujarat [Criminal Appeal 1218 of 2005], A. Vennugopal Reddy vs. State [Bail Appln. 1444/2022] and Charles Ezih @ Papa vs. NCB [Bail Appln. 1450 of

20220.

5. On the other hand, learned Sr. Standing Counsel for NCB has vehemently opposed the bail application and has argued on the lines of the status report. It is submitted by the Ld. Sr. Standing Counsel that the petitioner is a foreign national who indulged in illegal trafficking of contraband substances and two seized parcels with 245gms of Heroin from first parcel booked under Airway bill no. 7185476351 and 200 gms and 225 gms of Heroin from second parcel under Airway bill no. 7185476362, which is commercial quantity has been recovered and the said parcels were found to be booked by co-accused Sita @Christina Rozaria who is the wife of the present petitioner in conspiracy with the petitioner. Furthermore, 12 gms of Cocaine and 20 gms of Methamphetamine has also been recovered from the residential premises of the petitioner. He further submitted that the matter is at the stage of trial and some witnesses are yet to be examined and therefore, releasing the petitioner on bail at this stage will adversely affect the trial. Lastly, he submitted that keeping in view the fact that the petitioner is a foreign national, recovery effected from petitioner, recovery of parcels containing contraband of commercial quantity booked in name of coaccused and the serious allegations against the petitioner, there is strong likelihood of him absconding if released on bail.

6. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India, [(1994) 6 SCC 73], the Hon’ble Supreme Court has observed and held as under: “15. …We, therefore, direct as under:

(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:

(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge 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