Kingsley Ofobike v. Narcotics Control Bureau

1. The present petition has been filed under Section 439 Cr.P.C. seeking regular bail in Sessions Case No.280/2021 arising out of Case No.VIII/21/DZU/2021 under Sections 8(c), 21(c), 23(c) and Section 29 of NDPS Act registered by Narcotics Control Bureau (DZU).

2. The brief facts of the case as borne out from the complaint filed by the respondent/NCB under Section 36A of the NDPS Act are that on the basis of secret information co-accused Hikamtuallah Hakimi, an Afghan national, was apprehended at IGI Airport and 930 gm, 940 gm and 1.32 kg of heroin was recovered from him. On preliminary enquiry, he disclosed that the same is to be delivered to another Afghan national, namely, Mohd. Nasar. Thereafter, Mohd. Nasar who came to receive the trap delivery was apprehended. From the house of Mohd. Nasar, 90 gm of powder which was used to be mixed in heroin was recovered. From another almirah, same type of powder weighing 03 kg was recovered. Mohd. Nasar disclosed that the heroin which was to be delivered by co-accused Hikamtuallah Hakimi was to be further delivered to Chibueze and the petitioner/Kingsley Ofobike who are partners in illegal business of selling and purchasing of narcotic drugs and psychotropic substances. Thereafter, the petitioner/Kingsley Ofobike was apprehended but no contraband was recovered from him or from his residence. However, the petitioner’s mobile was taken into possession. The print out of screen shots of the petitioner’s mobile were taken to establish that he used his mobile for dealing in drugs.

3. The learned counsel for the petitioner submits that the petitioner has been arrested only on the basis of the disclosure statement of coaccused namely, Mohd. Nasar. He submits that the disclosure statement recorded under Section 67 of the NDPS Act is inadmissible in evidence. He further submits that no recovery of contraband has been made from the petitioner. He submits that the recovery of contraband is from co-accused Hikamtuallah Hakimi. He further submits that another piece of incriminating material which has been relied upon in the complaint filed by the respondent under Section 36A of the NDPS Act, is the print out of screenshots of WhatsApp chats allegedly taken from the mobile of the petitioner. He submits that the said WhatsApp chats do not connect the petitioner to the recovery made from the co-accused persons. He also relies on the decision of the Hon’ble Supreme Court in Bharat Chaudhary Vs. Union of India, 2021 SCC OnLine Sc 1235 to contend that print outs of WhatsApp messages were not treated as sufficient material to establish a live link between the petitioner in that case with other coaccused at the stage of considering the bail application under Section 439 Cr.P.C.

4. The bail is opposed by Mr. Subhash Bansal, Senior Standing Counsel for the respondent/NCB on the ground that the offence is of serious nature and the quantity of the contraband recovered from the co-accused is commercial, therefore, the petitioner has to satisfy the twin conditions as mentioned in Section 37 of the NDPS Act before being released on bail. He invites attention of the Court to Annexure 42, which is part of the Criminal Complaint filed by the respondent/NCB. The said Annexure is a response given by the Field Agency of MHA to the respondent that the arrival details of coaccused Hikamtuallah Hakimi and Mohd. Nasar have been traced but the details of the arrival of petitioner in the country are not available. He contends that the petitioner is a foreign national, and if enlarged on bail, he may abscond and flee from justice and may not be available during trial, he therefore urges that the bail application of the petitioner be rejected.

5. To controvert the submission of the learned counsel for the respondents, the learned counsel for the petitioner refers to the decision of the Supreme Court in Supreme Court Legal Aid Committee representing Undertrial Prisoners Vs. Union of India & Ors., (1994) 6 SCC 731 to submit that the condition laid down by the Supreme Court apropos grant of bail under the NDPS Act, 1985 to an undertrial who is a foreigner could also be followed qua the present petitioner to address the apprehension of the respondent/NCB that the petitioner, who is a foreign national, may flee from justice if enlarged on bail. The relevant condition reads as under:-

(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 said accused shall not leave the country and shall appear before the Special Court as and when required.

6. I have heard the learned counsel for the petitioner as well as learned Senior Standing Counsel for the respondent/NCB and have perused the record.

7. Insofar as incriminating material in the form of WhatsApp chats which have allegedly been retrieved from the mobile of the petitioner are concerned, the probative value of the same shall be tested during trial. At this stage of considering the bail application of the petitioner, the same cannot be treated as sufficient material to establish a link between the petitioner and other co-accused from whom the contraband has been recovered, more particularly, when the recovery of heroin is from the co-accused Hikamtuallah Hakimi. Further, it is not the case of the respondent/NCB that the said accused was in contact with the petitioner.

8. It is also not the case of the respondent that recovery of contraband has been made from the petitioner. The petitioner has been implicated only on the basis of the disclosure statement made by the co-accused Mohd. Nasar under Section 67 of the NDPS Act, which has been held to be inadmissible in evidence by the Hon’ble Supreme Court in Toofan Singh Vs. State of Tamilnadu, (2021) 4 SCC 1. The relevant paragraphs of the judgment read as under:-

9. A Coordinate Bench of this Court in Phundreimayum Yas Khan Vs. State (GNCT of Delhi), 2023 SCC OnLine Del 135, has held that the disclosure statement of co-accused is per se not admissible without there being any corroboration. The relevant part of the decision reads as under:-

10. Though the recovery of contraband (heroin) from the coaccused Hikamtuallah Hakimi is of commercial quantity but since no recovery has been made from the petitioner herein and there is no material to link the said commercial quantity recovered from the coaccused Hikamtuallah Hakimi to the petitioner, except the statement of co-accused Mohd. Nasar, which is per se not admissible, the rigours of Section 37 of the NDPS Act do not apply.[1]