Okpala James v. The State

1. By way of present application under Section 439 of Code of Criminal Procedure („Cr.P.C.‟), the applicant seeks regular bail in case FIR bearing no. 118/2016, registered at Police Station Crime Branch under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 („NDPS Act‟).

2. The case of prosecution, in brief, is that a secret information was received on 10.07.2016, whereby ASI Sudhir Kumar, Narcotics Cell, Crime Branch was informed that one Nigerian national namely James was involved in the supply of cocaine in Delhi and that on the said date, he would be coming in front of Civic Centre near Ramleela ground, Delhi between 12:00 PM to 12:30 PM to deliver a consignment of Heroin to someone. This information was shared with concerned Inspector, Narcotics Cell who further verified the facts from informer and informed the same to ACP, Narcotics Cell, and the said information was also reduced to writing vide DD No. 05 dated 10.07.2016. Thereafter, a trap was laid at Jawahar Lal Nehru Marg bus stand, near Ramleela ground, Delhi and the applicant was apprehended at the instance of secret informer. After apprehension, the petitioner was informed about his legal rights and notice under Section 50 NDPS Act was served upon him. Upon conducting the formal search, one maroon colour carry bag was recovered from the right hand of petitioner, and on checking the same, one transparent polythene containing white colour powder was recovered. Upon further checking, the same was found to be contraband „cocaine‟ weighing around 310 grams. Further as per prosecution, the recovered contraband was seized after taking out samples and the case property was sent to Police Station Crime Branch and further formalities under Section 55 NDPS Act were completed. The seized sample was sent to Forensic Science Laboratory, and after completion of investigation, chargesheet under Section 21 NDPS Act and Section 14 Foreigner Act was filed in the concerned Court against the petitioner.

3. Learned counsel for accused/applicant submits that applicant was arrested on 10.07.2016 and has been in judicial custody for almost 6 years and 7 months. It is stated that applicant has been charged with offence punishable under Section 21 NDPS Act, minimum punishment for which is imprisonment for 10 years and fine of Rs. 1 lakh. It is argued that in view of the 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, the applicant is entitled to bail on the ground that he has remained in jail as undertrial for more than half of minimum punishment applicable in present case. Reliance has also been placed on several judgments of Co-ordinate benches of this Court. Learned counsel further states that present applicant is a foreigner and has been falsely implicated in the instant case.

4. Learned APP for the State, on the other hand, opposes the present bail application and submits that the charges against applicant are serious in nature. It is stated that applicant is a resident of Nigeria and there is a strong possibility that he may abscond, if released on bail. It is, however, stated that since only a few formal witnesses are yet to be examined before the learned Trial Court, this Court may order expedition of trial.

5. I have heard the arguments advanced by both the sides and perused the material on record.

6. The allegations against the applicant are that he was involved in the supply of cocaine in Delhi, and recovery of 310 grams of cocaine was made from the applicant which is a commercial quantity. In such a case, the grant of bail will be subject to the rigours of Section 37 of NDPS Act. The law regarding Section 37, as discussed by Hon‟ble Apex Court in Narcotics Control Bureau v. Mohit Aggarwal 2022 SCC Online SC 891, is reproduced as under: “...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, learned counsel for applicant submitted during the course of arguments that present application in not being pressed on merits, rather applicant prays for grant of bail in terms of decision of Hon‟ble Apex Court in Supreme Court Legal Aid Committee (supra) and Satender Kumar Antil (supra) considering his period of custody.

8. The Hon‟ble Supreme Court in Supreme Court Legal Aid Committee (supra), while dealing with prolonged incarceration of undertrial prisoners under NDPS cases in State of Maharashtra, had issued certain directions for grant of bail in those cases where trial was delayed and the accused had already undergone more than half of the sentence prescribed, subject to certain conditions. The relevant observations are reproduced 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.