Delhi High Court - Orders
Amans Osaretin vs Narcotics Control Bureau on 24 September, 2021
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1069/2021
AMANS OSARETIN ..... Petitioner
Through : Ms.Sushama Sharma and Mr.Karan
Sharma, Advocates.
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through : Mr.Subhash Bansal, Sr. Standing
Counsel and Mr.Shashwat Bansal,
Advocate.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 24.09.2021
1. The hearing has been conducted through Video Conferencing.
2. This petition is filed for release of the present applicant on bail till the final disposal of the CASE No.SC/8805/2016, FILE NO.: NCB- VIII/03/DZU/2015, under Section 29 r/w section 8 & 23 (c) r/w section 29 NDPS ACT, pending in the Court of learned ASJ, Spl. Judge NDPS, Patiala House Courts, New Delhi.
3. The facts are that based on information dated 16.02.2015 search of parcel bearing Airway Bill No. 81294893 having Consignor name as Ikbal Hossain R/o Maldo (WE) and the name of consignee S Priya Southampto U.K. Ro was conducted. Upon search of said Parcel bearing airway bill no. 81294893 lying at UBX Courier Co Mohammadpur, Bhikaji Cama Place, New Delhi, in the presence of public witnesses, it contained plywood cardboard sheet measuring about 36x26 inches and around 1-1.5 cm thick on which some artwork was done by pasting artificial flowers and a greeting card pasted on it. On close examination, on back side of the sheet there was a bulge and on removing the backside two transparent polythene packets Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:27.09.2021 11:44 filled with brownish powder were found between plywood and cardboard sheet. The said substance upon testing gave positive result for Heroin and the total quantity weighed was 460 grams. The complete seizure proceedings were conducted as per Panchnama dated 16-02-2015.
4. During investigations, the consignor name mentioned as Ikbal Hossain on the said parcel was tracked and he alleged the parcel was booked at the instance of the present petitioner. He assisted in the arrest of the present petitioner from whose possession the packaging material used in the said parcel as well as address of the consignee, paint colour box/brushes, cardboard sheet 36 x 26 inches, were all recovered and seized vide Panchnama dated 26.02.2015.
5. It is the submission of learned counsel for the petitioner the only evidence against the present petitioner is his statement under Section 67 of NDPS Act; the statement of co-accused under Section 67 of the NDPS Act and the recovery of such like packaging material used in the parcel.
6. Learned counsel for the petitioner submits statement under Section 67 of NDPS Act in view of Tofan Singh vs. State of Tamil Nadu 2020 SCC Online SC 882 is held to be inadmissible in evidence. It is alleged even proper procedure was never followed in the present matter since the complaint shows without weighing two polythene packets allegedly containing the contraband, the contents of both the packets were mixed into one and two samples were drawn, found to be positive for heroine.
7. It is also submitted by learned counsel for the petitioner the samples ought to have been drawn from both the packets separately and the contents ought not to have been mixed without even weighing.
Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:27.09.2021 11:448. The learned counsel for the petitioner has referred to various judgments viz. Amani Fidei Chris Vs. Narcotics Control Bureau Crl.A.1027/2015 decided on 13.03.2020; Ahmed Hassan Muhammed Vs. The Customs Bail Appln.3076/2020 decided on 11.02.2021, to say that the procedure adopted was incorrect and hence its benefit be given to the petitioner.
9. It is further submitted only evidence against the petitioner now is packaging material which alone would never result in the conviction of the accused.
10. Learned counsel for the NCB has referred to the judgment viz. Bobby Collin V. Narcotics Control Bureau Bail Appln. 812/2021 dated 19.04.2021; Sucha Singh Vs. State of Punjab CRL No.826-DB/2009 dated 06.07.2015 passed by High court of Punjab and Haryana at Chandigarh; Superintendant Narcotics Central Bureau, Chennai, V. R. Paulsamy AIR 2000 SC 3661 to say the facts may not to be analysed at the present stage to give benefit to the accused and even otherwise, the standing orders 1/88 and 1/89 do not have any statutory force, per Sucha Singh (supra).
11. Without opining on the validity of procedure of taking samples and such standing orders, it is apparent on record the only evidence against the present petitioner is the packaging material recovered from him and nothing else.
12. Considering the period of custody of the applicant viz. of more than 6 years per nominal roll dated 17.05.2021 and after considering the Toofan Singh (supra) I am of the view the parameters of Section 37 of the NDPS Act would not come in way of grant of bail to petitioner, hence he is admitted to bail on his executing a personal bond of Rs.1.00 lac Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:27.09.2021 11:44 with one surety of the like amount to the satisfaction of the learned Trial Court/Duty MM.
13. The petitioner shall not leave the country till the trial is over and shall also inform the concerned SHO of his whereabouts once in the first week of every month.
14. The applicant is directed to furnish his contact details/address to the Investigating Officer and shall keep his mobile location app open at all time.
15. The petition stands disposed of in above terms.
16. Copy of this order be sent electronically to the learned Trial Court / Jail Superintendent for information and compliance.
YOGESH KHANNA, J.
SEPTEMBER 24, 2021 VLD Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:27.09.2021 11:44