Ntombovuyo Noluvoyo Precious Mafanya v. Custom

6.[7] Learned counsel for the petitioner has also relied upon the judgement in the matter of ‘Supreme Court Legal Aid Committee representing under trial prisoners v. Union of India and others (1994) 6 SCC – 731’ wherein it was directed 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 prescribed 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 terms 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 on 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.” 6.[8] Reliance is also placed on the matter titled as ‘Sanawar Ali v. Union of India’, C.R.M. 9314/2020 decided by the Kolkata High Court, wherein a question was raised that whether restrictions imposed via Section 37 of the NDPS Act are overridden by the directions given by the Hon’ble Apex Court in ‘Supreme Court Legal Aid Committee v. Union of India (1994) 6 SCC 731’ in the matter of grant of bail to under trials wherein learned Division Bench reached to the following conclusion: “In the light of the aforesaid discussion, we are of the view that the directives in Supreme Court Legal Aid Committee (supra) applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution.” 6.[9] Reliance is also placed on Bail Application No.2477/2021 in ‘Atul Aggarwal v. Directorate of Revenue Intelligence’ decided on 21.12.2021 by a coordinate bench of this Court. In the said case, the petitioner was in custody for 9 years and keeping in view the fact that the applicant was charged under Section 9A/21/23/25A of the NDPS Act and the minimum imprisonment was specified as 10 years and the petitioner had been in custody for more than 9 years, he was ordered to be released on bail.

6.10 The petitioner has also relied on the judgement of the Hon’ble Supreme Court in the matter of ‘Mossa Koya KP v. State (NCT of Delhi) in Criminal Appeal No.1562/2021 decided on 06.12.2021, wherein the sentence of the convict was suspended relying upon various judgements including ‘Daler Singh v. State of Punjab 2006 SCC Online P&H 1951’ and in the said case, the petitioner had almost undergone 8 years of actual imprisonment out of total sentence of 10 years. It was observed that in all probability, the entire sentence would have been undergone by the time the appeal is heard, so under those circumstances, the remaining sentence of the petitioner was suspended.

6.11 Reliance is also placed in the matter of ‘Baba Fakruddin Sheikh @ Fakru v. The State’ in Bail Application No.334/2021, decided by a coordinate bench of this Court on 25.03.2021. This order was challenged before the Hon’ble Supreme Court in the matter of ‘Baba Fakruddin Sheikh @ Fakru v. The State (NCT of Delhi), Special Leave to Appeal (Crl.) No.13/2022 decided on 16.02.2022 wherein the Hon’ble Supreme Court keeping into consideration the fact that the petitioner had suffered incarceration of 7 years and 6 months and there was no possibility of trial concluding in the near future, bail was granted to the petitioner.

6.12 Reliance has been also placed upon Bail Application No.997/2022, titled as ‘Ejike Jonas Orji v. Narcotics Control Bureau’ decided by a coordinate bench of this Court on 13.06.2022. In the said case, the petitioner was in custody for 8 years; 6 PWs were yet to be examined. In this judgement, the learned Coordinate Bench of this Court has held that there cannot be a different consideration in the case of foreign nationals who have come before Court while applying for bail as the judgement of the Hon’ble Supreme Court Legal Aid Committee, the Hon’ble Supreme Court had expressly dealt with the question of grant of bail to foreign accused under the Act. In the said case, although, the applicant was a foreign citizen but he was married to a citizen of India and also has a child who is a resident of New Delhi. The said address stood verified and the applicant was found to be having roots in the society despite his citizenship status. For these reasons, the bail was granted.

6.13 Reliance has been also placed on a judgement of Hon’ble Supreme Court in SLP (CRL.) 5769/2022 in the matter of ‘Nitin Adhikary @ Baban v. The State of West Bengal’ decided on 01.08.2022. In the said case, the petitioner had undergone custody for a period of 1 year and 7 months as on 09.06.2022, trial was at preliminary stage as only one witness was examined and the petitioner did not have any criminal antecedents, so the petitioner was granted bail in a case under Section 21(c) and 37 of the NDPS Act. 7.

7. In a recent decision of Full Bench of Supreme Court of India, in the matter of ‘N.C.B. v. Mohit Aggarwal 2022 Live Law (SC) 613’, the following has been observed:

13. The expression “reasonable ground” came up for discussion in “State of Kerala and others Vs. Rajesh and others” and this Court has observed as below:

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 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.

16. Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the appellant NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was to the only material that the appellant-NCB had relied on to oppose the bail application filed by the respondent. The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co-accused, Promod Jaipuria form of tablets, injections and syrups. Counsel for the appellant-NCB had also pointed out that it was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all coaccused including the respondent herein showed that they were in touch with each other.

17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.

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 chargesheet 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 3 of the NDPS Act. (Emphasis Supplied)

19. As a result of the aforesaid discussion, the present appeals are allowed and the impugned order releasing the respondent on post-arrest bail, is quashed and set aside. The bail bonds of the respondent are cancelled and he is directed to be taken into custody forthwith. 8.[1] In view of the above observations, the bail application of the petitioner is to be considered as this judgement lays down the latest law of the land on the point of bail.

9. In the present case, de hors the statement recorded under Section 67 of the NDPS Act, the following factors are taken into account: 9.[1] Recovery of Cocaine from the possession of the petitioner; 9.[2] Recovered Cocaine falls in commercial quantity; 9.[3] Petitioner was intercepted near the exit gate of Customs Arrival Hall at the airport; 9.[4] Statements of recovery witnesses were recorded at the time of recovery; and 9.[5] Samples were drawn before the learned Magistrate and proceedings were duly photographed and videographed; 9.[6] The trial has commenced and Examination of the witnesses is under progress.

10. The strict conditions for granting bail under Section 37 of the NDPS Act cannot be said to be satisfied in the present case. None of the ground argued by the learned counsel for the petitioner can be made basis of reaching to the conclusion that there are reasonable grounds to believe that the petitioner is not guilty of the offence. These may be good grounds to be argued at the stage of final arguments, but at the present stage, this Court cannot reach to a reasoned conclusion that petitioner has not committed the offence.

11. Similarly, there is nothing on record to satisfy that if the petitioner is released on bail, she will not again indulge in the same crime, during the bail period.

12. In my view, the twin conditions set out in Section 37 of the NDPS Act for granting bail are not satisfied.

13. Nothing stated hereinabove will be considered as an opinion on merits of the case when the learned Sessions Judge will decide the case.

14. No grounds are made out for grant of bail to the petitioner at this stage. The bail application is accordingly dismissed.