Moscardini Giovanni Pietro Svo Moscardini Romeo v. Narcotics Control Bureau

1. The present application under Section 439 of the Code of Criminal Procedure, 1973 (in short ‘CrPC’) seeks regular bail in NCB Case No.VIII/45/DZU/2015 for offence punishable under Sections 8/20B/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’).

2. It is an admitted position that the applicant has been in custody since 31.10.2015 and that the charge-sheet against him has already been filed.

3. Counsel appearing on behalf of the applicant invites my attention to the circumstance that the co-accused has already been enlarged on bail by the 2016:DHC:3217-DB Special Judge on 19.12.2015 and would, therefore, urge that the applicant is entitled to parity since the role attributed to the applicant is identical to that attributed to the co-accused.

4. Learned counsel appearing on behalf of the applicant further invites my attention to a decision of this court in Mohd. Aslam v. State, (2005) 82 DRJ 597, to urge that Section 37 of the NDPS Act is not attracted to the facts of the present case and that, therefore, the applicant is entitled to be released from judicial custody.

5. As per the prosecution the applicant along with the co-accused, who is his fiancée, were checked in at the IGI Airport, New Delhi, enroute to Goa on 31.10.2015. It is the allegation of the prosecution that the luggage checked in by the applicant was X-rayed and upon search 720gm. of charas was recovered therefrom.

6. A perusal of the charge-sheet reveals that the provisions of Section 37 of the NDPS Act are not attracted in the facts and circumstances of the subject case. Consequently, since the contraband allegedly recovered from the applicant is not of commercial quantity, the latter is not required to demonstrate that he is not guilty of the alleged offence.

7. Although, it has been asserted on behalf of the official respondent that there is a possibility that the applicant may not be available to stand trial in view of the circumstance that he is a foreign national and that there is also a distinct possibility of the offence alleged in the charge-sheet being repeated if the applicant is enlarged on bail, no cogent material in support of the afore-stated submission is forthcoming. It is also an admitted position that the co-accused in the subject charge-sheet, who is the fiancée of the applicant, has been enlarged on bail and that the allegations levelled against both the accused are similar. In this view of the matter the applicant is entitled to parity. Furthermore, the applicant has already been in judicial custody since 31.10.2015 and the chargesheet has already been filed, which circumstance cannot be lost sight of.

8. It is trite to say that the courts are loath to countenance pre-conviction detention unless there are circumstances to warrant a prima facie view that the accused will not be available to stand trial, or that he will tamper with the evidence or try or influence witnesses. In my view in the present case the latter two circumstances mentioned above are not attracted at all in the facts of the case.

9. The contraband has already been seized. Insofar as the issue of securing the attendance of the applicant at the trial is concerned, the same can be ensured by imposing stringent conditions whilst enlarging the applicant on bail.

10. In view of what has been afore-stated, the present application is allowed. The applicant is admitted to regular bail on his furnishing personal bond in the sum of Rs.2,00,000/- with one surety of the like amount to the satisfaction of the trial court subject to the following conditions:

1. That he shall surrender his passport to the trial court if not already surrendered.

2. That he shall not leave the country during the pendency of the trial without prior permission of this court.

3. That he shall not leave the NCT of Delhi without the prior permission of this court.

4. That he shall also furnish to the IO the address of the premises in which he will reside after being released on bail within a week of his release and the same shall be verified by the IO. Any change in the said address is also to be duly intimated to the court.

11. It is further directed that the competent authority shall issue LOC in relation to the applicant so as to ensure he does not leave the country from any port. The concerned Embassy/High Commission be informed not to issue the applicant any travel document during pendency of the trial.