Full Text
HIGH COURT OF DELHI
JUMAH KHAN ..... Petitioner
Through: Mr. Shiv Chopra, Ms. Aadhya Khanna and Mr. Nikhil Srivastava, Advocates
Through: Mr. Narinder Jit Singh Bajwa, APP for the State along with Mr. Shivesh Kaushik, Advocate.
JUDGMENT
1. By this petition, the petitioner is seeking regular bail in FIR NO. 26 of 2014, registered at PS Special Cell under Sections 21/29 NDPS Act.
2. The facts as per the FIR are that pursuant to an information received on 23rd June 2014, that Afghan nationals residing at Lajpat Nagar, Arhar colony and other places in Delhi were running a macrodrug cartel, informants were deployed at various places to identify these drug traffickers. Based upon subsequent specific information that there would be a collection of consignment of drugs opposite Oberoi Hotel flyover, Delhi, and pursuant to information being conveyed to the ACP, a raid was directed to be conducted. The information was lodged vide DD No. 15 at 2.45 p.m. and submitted before the Inspector in charge in compliance with Section 42 NDPS Act. Subsequently, when the reading team reached the spot, opposite Oberoi Hotel flyover, they found a private Maruti car parked on Lodi Road near Amir Khushro Park. One person came on foot from the park along with a black and grey colour bag and stood near a streetlight pole and was identified by the informer as Jumah Khan, a resident of Afghanistan (the petitioner herein). Later another person came who was identified by the informer as Arif Ali, a resident of Rajasthan. Both started talking to each other and the raiding party advanced and apprehended them. After due compliance of Section 50 NDPS Act, search of Arif Ali revealed a transparent polythene parcel containing heroin of about 50g. Subsequently, the petitioner was also searched and his black grey handbag was found having 72 capsules of heroin, found to be weighed 682g. Both the petitioner and Arif Ali were implicated for offences punishable under Sections 21/29 NDPS Act and a rukka was sent for registration of the case. During the investigation, samples were deposited at FSL Rohini and the expert opined that it was heroin. Charge-sheet was filed before the learned Trial Court on 10th December 2014. The supplementary charge sheets were filed on 21st July 2016 and 19th April 2018 (despite subsequently after the charges had been framed) and charges were framed in July 2015.
3. The learned counsel for the petitioner contended that the petitioner had been in custody since 23rd June 2014, and had been in custody as an undertrial for about 8 years and 5 months. This was also evident from the Nominal Roll on record of this Court. The learned counsel further contended that the trial was still to conclude and prosecution witnesses were yet to be examined, and therefore there was no guarantee of an expedited conclusion of the trial. In the meantime, the petitioner had already suffered 8½ years of incarceration, which was more than half the sentence that could be visited on the petitioner assuming that he would be convicted. Considering it was a commercial quantity of heroin, the minimum sentence that would be visited on the petitioner would be 10 years and a fine of 1 lakh. The learned counsel for the petitioner, in support of the plea of bail on the grounds of delay in trial and a long period of incarceration, relied on inter alia the following decisions of the Hon‟ble Supreme Court and this Court: Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731; Manoj Kumar Singh v. The State of West Bengal, SLP (Crl) No. 4711-4712/2020 vide order dated 06.10.2021; Anil Kumar v. State, 2022 SCC OnLine Del 778; Gurmito v. CBI, 2022 SCC OnLine Del 2316; Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 603 and Rakesh Kumar Bhola v. Directorate of Revenue, 2022 SCC OnLine Del 3502.
4. Responding to the contentions raised by the counsel for the petitioner, the learned APP stated that that the prosecution was not at fault for the delay in trial and the charges having been framed, the petitioner could not get the benefit of section 37 NDPS Act considering the facts of the case. The learned APP also adverted to the decision by the Hon‟ble Supreme Court in Narcotics Control Bureau v Mohit Agarwal, (2022) SCC OnLine SC 891 in support of their submissions.
5. It would be apposite before addressing the contentions of the parties to first advert to various decisions which have been referred to and others which are relevant in this context. For ease of reference, relevant extracts from each of these decisions are also supplied as under. 5.[1] Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 73. Dealing with a petition under Article 32 of the Constitution of India by the Supreme Court Legal Aid Society regarding delay in disposal of cases under the NDPS Act and its impact on undertrials, the Hon‟ble Supreme Court passed the following directions for cases in which accused are in jail and trials were delayed, on the anvil of Article 21 and 14 of the Constitution of India, notwithstanding Section 37 of the NDPS Act: “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 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 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 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 said accused shall not leave the country and shall appear before the Special Court as and when required;
(v) the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;
(vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount;
(vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and
(viii) after the release of the undertrial accused pursuant to this order, the cases of those undertrials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in Section 309 of the Code.” (emphasis supplied) 5.[2] In Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590, the Hon‟ble Supreme Court noted that trial in NDPS cases took exceptional time due to unavailability of prosecution witnesses which are usually officers of various different agencies:
5.[3] Further in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 603, the Hon‟ble Supreme Court again noted that:
12. A bare perusal of paragraph 16 indicates to this Court that the directions were not meant to be employed as onetime directions in the said case, but were meant to apply as a one-time measure in all cases in which the accused persons were in jail and their trials had been delayed. The intention of paragraph 16 was to convey that despite the absence or presence of delay in trial in a case, the Special Court was still free to exercise its power to grant bail under Section 37 of the NDPS Act. Furthermore, if the Special Court also retained the power to cancel bail if the accused was found to be misusing the same. The directions were certainly not, as the learned APP has submitted, meant to only apply in the case therein, but were directions that were to be followed by Courts in all cases pertaining to NDPS wherein the accused had been subjected to prolonged delay in their trials.” This decision was challenged before the Hon‟ble Supreme Court in State v. Anil Kumar @ Nillu, SLP (Crl.) Diary No. 25615/2022 and the SLP was dismissed vide order dated 14.10.2022. Further in this case this Court had granted bail where 2.210 kg of charas/hashish was recovered and the accused had been in custody for almost eight years. This Court held:
5.10 Bail was also granted by this Court in Sarvan Kumar v. State (NCT of Delhi), 2022 SCC OnLine Del 2079 where 21 kgs of ganja was recovered and the accused had remained in custody for more than seven years and 11 out of 24 witnesses were examined. “12. The rigors of Section 37 of the NDPS Act would thus not come in the way while dealing with a bail application moved by an undertrial who has remained in custody for more than half of the minimum sentence prescribed.”
5.11 Bail was also granted by this Court in Ejike Jonas Orji v. Narcotics Control Bureau, 2022 SCC OnLine Del 1770 where 265 grams of heroin was recovered and the accused had remained in custody for almost 8 years and 14 out of 20 witnesses were examined.
5.12 This Court, more recently, in Rakesh Kumar Bhola v. Directorate of Revenue, 2022 SCC OnLine Del 3502 where 275 kg of Pseudoephedrine Hydrochloride had been fraudulently diverted and the accused had remained in custody for more than six years and 9 out of 53 witnesses were examined, granted bail and noted that:
5.13 The State relied upon a decision of the Hon‟ble Supreme Court denying bail in Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891where 6.64 lakhs tablets of different psychotropic substances including Tramadol weighing around 328.82 Kgs and other psychotropic substances were recovered and the accused had remained in custody for a period of 1 year 3 months. The Hon‟ble Supreme Court observed: “18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”
5.14 Also in Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705, as relied upon by the State, the Hon‟ble Supreme Court held: “6. Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of CrPC regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 CrPC are not subject to the limitation mentioned under Section 37 of NDPS Act. The non-obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439 CrPC and Section 37 of the NDPS Act, Section 37 prevails… …As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of CrPC should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.”
6. What can be culled out and is evident from these decisions listed above is that the Hon‟ble Supreme Court has in 1994 in Supreme Court Legal Aid Committee (supra) enunciated certain principles/directives which inter alia provide that if an undertrial is charged for an offence under the NDPS Act punishable and the trial is delayed and the accused has already undergone almost half of the sentence prescribed (or the minimum if there is a range provided) then he should be entitled for being released on bail subject to conditions. Directive (iii), for example, provides that where minimum imprisonment of ten years and a minimum fine of Rupees one lakh is prescribed, such an undertrial shall be released on bail if he has been in jail for not less than five years on the condition that he furnishes bail in the sum of Rupees one lakh with two sureties for like amount. This principle is further buttressed by another decision of the Hon‟ble Supreme Court in Satender Kumar Antil (supra) where it was held when dealing with cases of category „C‟ (Special Acts) that provisions contained in Sections 436A Cr.P.C. would apply to Special Acts as well in the absence of any specific provision. It was specifically stated by the Hon‟ble Supreme Court that “the rigor as provided under section 37 NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person”. The jurisprudential crux of this principle being enunciated by the Hon‟ble Supreme Court is that “bail is the rule and jail is an exception” and that there is a principle of presumption of innocence, the core intendment being Article 21 of the Constitution of India which guarantees right to personal liberty and right to speedy trial. In this context, the decisions in Kishan Lal (supra) of the Hon‟ble Supreme Court would not have relevance since the principles enunciated in Supreme Court Legal Aid Committee (supra) and endorsed in Satender Kumar Antil (supra) would hold ground. These principles have been followed inter alia by this Court in Gurmito v. CBI (supra), Anil Kumar v. State (supra), Sarvan Kumar v. State (supra), Ejike Jonas Orji v. Narcotics Control Bureau (supra).
7. Adverting now to the decision by the Hon‟ble Supreme Court in Mohit Aggarwal (supra) where it was held that that the length of custody in itself cannot be a persuasive ground for relief under Section 37 NDPS Act, It is noticed on a reading of the decision of the Hon‟ble Supreme Court in Mohit Aggarwal (supra) that the facts in the case involved an extremely huge amount of 6.64 lakhs tablets of different psychotropic substances including Tramadol weighing around 328.82 Kgs and other psychotropic substances and the accused had remained in custody for a period of 1 year 3 months. It is evident that the facts in Mohit Aggarwal (supra) did not involve a case of NDPS accused in custody for at least half the minimum sentence prescribed for the offence and therefore, the Hon‟ble Supreme Court in that decision did not traverse through the principles enunciated in the decision of Supreme Court Legal Aid Committee (supra). Nor did it have the benefit of the decision of the Hon‟ble Supreme Court in Satender Kumar Antil (supra) which had been pronounced 8 days prior. The decision in Mohit Aggarwal (supra) was limited to the appreciation of the merits of the case in rubric of Section 37 NDPS Act for the purpose of dealing with application of bail.
8. In the facts of this case, it is evident that the petitioner was allegedly found in possession of 682 grams of heroin for which he is charged. This being a commercial quantity would invite a minimum sentence of 10 years and a fine of 1 lakh rupees extendable to 20 years and a fine of 2 lakh rupees. However, without adverting to the merits of the matter, it is evident that the petitioner has spent more than half period of the minimum sentence of 10 years and the trial is expected to take more time and not conclude in the near future, therefore, the principles enunciated by the Hon‟ble Supreme Court will directly apply to the facts in this case and would entitle the petitioner to bail subject to certain conditions.
9. Consequently, the petitioner is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 1,00,000/- with two sureties of the like amount subject to the satisfaction of the Learned Trial Court, further subject to the following conditions: i) Petitioner will not leave the country without prior permission of the Learned Trial Court and will deposit his passport with the Learned Trial Court. The learned Trial Court shall also requisition a certificate of assurance from the Embassy/High Commission of Afghanistan, the country to which the petitioner belongs, that the petitioner shall not leave the country and shall appear before the learned Trial Court as and when required. The petitioner shall not leave the NCT of Delhi without prior permission of the learned Trial Court. ii) Petitioner shall provide his address to the Learned Trial Court by way of an affidavit and revise the same in the event of any change in residential address. iii) Petitioner shall appear before the Learned Trial Court as and when the matter is taken up for hearing. iv) Petitioner shall provide all his mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. The mobile location shall be kept on at all times. v) Petitioner shall report to the IO once every week unless leave of absence is obtained from the Ld. Trial Court. vi) Petitioner shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, or tamper with the evidence of the case. Needless to state that any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.
10. Copy of the order be sent to the Jail Superintendent for information and necessary compliance.
11. Accordingly, the petition is disposed of. All pending applications, if any, are rendered infructuous.
ANISH DAYAL, J JANUARY 05, 2023