Frank Chidi Nwabugwbu v. Narcotics Control Bureau

1. By way of instant application under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟), the applicant seeks regular bail in Case No. NCB/VIII/10/DZU/2018 registered at Police Station Narcotics Control Bureau under Sections 21(c)/23(c)/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act').

2. The case of prosecution, in brief, is that on the basis of secret information received, co-accused persons namely Raimundo Jorge Cabral Trindade and Lima Jefferson, both citizens of Brazil, were searched on 16.04.2018 at Hotel Hare Rama Guest House, Paharganj, New Delhi and 2.650 kg of liquid cocaine was recovered from their possession. As per prosecution, the accused persons in their statements under Section 67 NDPS Act had disclosed that the drug consignment was given to them by EDU in Sao Paulo alongwith journey ticket and they had been asked to hand over the same to one Nigerian national Frank i.e. present applicant, who resides in Mumbai and would collect the same from the Hotel or outside Hotel on 17.04.2018. In compliance with the above statements, information was reduced into writing and surveillance was mounted near the Hotel. It is alleged that on 17.04.2018 at about 8:30 PM, the trap team had seen the present accused roaming near the Hotel and upon being apprehended, he had revealed his name as Frank Chidi Nwabugwbu and had stated that he had come to receive the drugs. In his disclosure statement, the applicant disclosed that he had visited the spot to receive drugs from the other two accused persons on the asking of one Onyeisi Nchuaja and that he had to further hand over the same to one Onyka in Mumbai.

3. Learned counsel for the present accused/applicant submits that applicant was arrested on 18.04.2018 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 5 years, he will be entitled to bail in view of decision of Hon'ble Apex Court in Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51 and Supreme Court Legal Aid Committee (Representing undertrial prisoners) v. Union of India (1994) 6 SCC 731. It is 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. Reliance has also been placed on several judgments of Hon'ble Apex Court as well as this Court where bails have been granted under such circumstances.

4. Learned SPP 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 also stated that applicant was in possession of a fake/forged passport and visa, and thus, he was residing in India without any valid passport and visa. It is also stated that even the SIM card which was being used by the applicant was obtained by using forged ID card. It is, thus, argued that the present application be dismissed in view of the serious allegations against the applicant.

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

6. The allegations against the present applicant are that he was apprehended from the spot where he had come to receive a drug consignment from the co-accused persons. He is also alleged to have been in possession of fake passport and visa which he had used to travel to India. Further, he had also provided a fake residential address in Mumbai and even the SIM card being used by the applicant had been obtained on the basis of a forged ID card. The consignment of contraband which had been seized by the investigating agency was 2.650 kg of liquid cocaine, which is a commercial quantity. In view thereof, the bar under Section 37 of NDPS Act would apply. As far as law under Section 37 is concerned, it will be apt to refer to the following observations of Hon'ble Apex Court in Narcotics Control Bureau v. Mohit Aggarwal 2022 SCC OnLine SC 891: “...10. The provisions of Section 37 of the NDPS Act read as follows: “[37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974) - (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless -

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.] ****

14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”

7. However, during the course of arguments, learned counsel for the applicant did not seek grant of regular bail on merits, rather contended that the applicant be enlarged on bail taking into account the duration of his custody and delay in trial.

8. In this regard, this Court notes that the applicant was arrested on 18.04.2018 and has been in judicial custody for about 5 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 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 bailamount 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.