Soleto Justniano Fernando Tito v. Narcotics Control Bureau

1. By way of instant application under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), the applicant seeks regular bail in case bearing No. VIII/19/DZU/2017 registered at Police Station Narcotics Control Bureau under Sections 21/23/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

2. The case of the prosecution, in brief, is that based on an information received, the applicant/accused, a citizen of Bolivia, who had arrived via flight No. ET-686 STA, was intercepted on 13.05.2017 near the Gate at Terminal 3 of Indira Gandhi International Airport. Upon enquiry, the applicant had disclosed that he had concealed capsules of cocaine inside his stomach which could be recovered with medical help. Thereafter, 50 capsules weighing 500 grams, containing white-coloured powder identified as cocaine, were recovered from the stomach of applicant at Safdurjang hospital, New Delhi from 13.05.2017 to 15.05.2017. As per prosecution, the applicant/accused in his statement under Section 67 NDPS Act had disclosed that the contraband was given to him by his cousin to deliver in India and that he had initially swallowed 80 capsules but in the middle of the journey, he had vomited about 30 capsules at Sao Paulo Airport, Brazil.

3. Learned counsel for the applicant/accused submits that applicant was arrested on 16.05.2017 and has been in judicial custody since then. It is stated that the present application is not being pressed on merits but only on the ground that since the applicant has been in judicial custody for more than 06 years, he will be entitled to bail in view in view of decision of Hon’ble Apex Court in Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51 and Supreme Legal Aid committee (Representing undertrial prisoners) v. Union of India (1994) 6 SCC 731, as well as several other decisions of Hon’ble Apex Court and this Court. It is thus stated that considering the duration of custody of the applicant and the fact that there is a delay in trial, the present application be allowed.

4. Learned SSC for NCB, on the other hand, opposes the present bail application and argues that present case is of recovery of commercial quantity of contraband. It is stated that applicant is a foreign national and thus, chances of absconding cannot be ruled out. It is further stated that the contraband in the present case was recovered from the stomach of the applicant/accused and thus, there are high chances of his conviction. It is also stated that only 4 witnesses are left to be examined and therefore, at this stage, the present application be dismissed.

5. I have heard arguments addressed by both sides and have perused the case file.

6. The allegations, in a nutshell, against the applicant are that he was apprehended at Indira Gandhi International Airport and 50 capsules containing cocaine were recovered from his possession, which he had swallowed and concealed inside his stomach. The contraband which had been seized by the investigating agency was 500 grams of cocaine, which is a commercial quantity. In view thereof, the bar under Section 37 of NDPS Act would apply to grant of bail to the present applicant.

7. However, the applicant in the present case does not seek grant of regular bail on merits, rather on account of the duration of his custody and delay in trial.

8. In this regard, this Court notes that the applicant was arrested on 17.05.2017 and has been in judicial custody for more than 06 years and 01 month. Further, the applicant is facing trial in a case where he has been accused of commission of offences under Sections 21/23/29 of NDPS Act. This Court notes that the punishment prescribed under these provisions is rigorous imprisonment for a term which shall not be less than ten years but may extend to twenty years, alongwith fine. In such category of cases, the directions of the Hon’ble Apex Court in Supreme Court Legal Aid Committee (supra) provide 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 Section 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 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;