Ugo Geoffery Franklin v. State NCT of Delhi

1. The present bail application has been filed under Section 439 Cr.P.C. read with Section 37 NDPS Act for the grant of regular bail in a case titled as State vs. Harjinder Singh &Ors.SC NO. 8689/2016. FIR NO. 63/2015; P.S: Special Cell, New Delhi.

2. Briefly Stating, that on receipt of secret information on 18.11.2015, a trap was laid at Burari crossing, Outer Ring Road where accused Mangal was seen handing over a packet alleged to be containing 1 Kg white colour heroin to Harjinder Singh and both were apprehended on the spot. It has further been alleged that 1 Kg white heroin was also recovered from the possession of Harjinder and another 1 Kg brown heroin was recovered from the Scooty of accused Mangal on the spot. During the investigation accused Mangal made a disclosure statement that he is in the trade of drug supply along with Mohd. Akhtar @ Raja, who used to get a huge supply of heroin from Sehzad. Allegedly 2 kg opium and 1 kg alprazolam were also recovered from the residence of accused Mangal.

3. The case of the prosecution is that at the instance of accused Shabir Ahmed Bhat@Sehjah the present applicant /accused Ugo Geoffry Franklin was arrested on 01.12.2015,and 1kg of heroin was alleged to be recovered from his possession and another accused Shabir Ahmed Bhat was also arrested.

4. It has further been alleged that accused Mohd. Akhtar was also arrested on 25.11.2015 and 525 gms of heroin was recovered from his newly purchased flat in New Chauhan Bangar, Seelampur, Delhi.

5. It is further alleged that applicant/co-accused Ugo Geoffery Franklin disclosed that he used to get the supply of heroin from one Imamudin, an Afghan national who was introduced to him by his Nigerian friend who is presently in Nigeria and they used to supply the heroin to Shahbir Ahmed Bhat @ Sehjad since many months. After the completion of the investigation in case FIR No. 63/2015, charge-sheet was filed under Sections 419/468/471/474/489 Cr.P.C. and Sections 18/21/22/25/29/61/85 NDPS Act and Section 14 of Foreigners Act.

6. Learned counsel for the applicant submits that the accused Ugo Geoffery Franklin is in custody since 19.11.2015. Learned counsel for the applicant also submits that earlier also a bail application was moved bearing no. Bail Appl. 3243/2021 which was dismissed as withdrawn vide order dated 13.01.2023.

7. Learned counsel for the petitioner submits that the present accused has been arrested merely on the disclosure statement of co-accused. Learned counsel is heavily relying upon the judgment of the Hon’ble Supreme Court in the Supreme Court legal aid committee representing Undertrial Prisoners V. Union of India &Ors. (1994) 6 SCC 731.

8. Learned counsel for the applicant further submits that co-accused Durgesh has already been granted bail by this court vide order dated 24.05.2023.

9. Learned ASC has opposed the bail application and has submitted that there is a huge recovery from the present petitioner. Learned APP submits that evidence that has appeared against Ugo Geoffery Franklin is as under: i.Statements of recovery witnesses regarding handing over of 01kg heroin by Ezeh to Ugo Geoffery Franklin to deliver the same to Shabir Ahmed Bhat at spot and recovery of 01 kg heroin from Ugo Geoffery Franklin on 01/12/2015. ii.Disclosure statements of accused persons and in pursuant of those disclosure further recoveries and arrests were effected accordingly including Ugo Geoffery Franklin. iii.Mobile CD Connectivity of accused Ugo Geoffery Franklin through his mobile numbers 9958236943 and 7838943486 with accused Shabir Ahmed Bhat upon his mobile number 9555631912 iv. Statement of PW to prove impersonation, forgery etc v. FSL Report regarding herein vi.Report of voice exhibits which will prove voice of accused with his voice in intercepted calls. As per FSL report voice of accused Ugo Geoffery Franklin has been matched with intercepted calls. vii.Intercepted calls of accused Ugo Geoffery Franklin with accused Shabir Ahmed Bhat on mobile no 9555631912 (remained on interception and used by Shabir Ahmed Bhat) regarding drug trafficking activities.

16. Learned ASC submits that there is sufficient evidence against the applicant and the accused, being a foreign national, if released on bail may not be available for facing the trial.

17. It is pertinent to mention here that the accused is in custody since 19.11.2015 and thus, admittedly has undergone custody for approximately 7 Years.

18. The Hon’ble Supreme Court in Supreme Court legal aid committee representing Undertrial Prisoners V. Union of India &Ors. (1994) 6 SCC 731 are detailed 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 the like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for the 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 a 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 matter 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 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 accused shall not leave the country and shall appear before the Special Court as and when required;