Delhi High Court - Orders
Tobias Christian vs Narcotic Control Bureau on 21 July, 2022
Author: Anu Malhotra
Bench: Anu Malhotra
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1301/2022
TOBIAS CHRISTIAN ..... Petitioner
Through: Mr. Arun K Srivastva & Mr. Shahina
Praveen, Advocates.
versus
NARCOTIC CONTROL BUREAU ..... Respondent
Through: Mr. Subhash Bansal, SPP for NCB &
Mr. Shashawat Bansal, Advocate.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 21.07.2022 The applicant vide the present application seeks the grant of bail in the instant case in Case No. VIII/64/DZU/2021 under Sections 8(c) and 21(b) of the NDPS Act, 1985 submitting to the effect that he has been falsely implicated in the instant case, that the embargo under Section 37 of the NDPS Act, 1985 does not apply in as much as the alleged recovery of contraband is only 150 grams of heroin, and thus much below the commercial quantity of 250 grams as per the schedule to the NDPS Act, 1985. It is submitted on behalf of the applicant that as per the impugned order, the only ground for further detention of the applicant in custody is that he is a foreign national which itself cannot amount to any ground for his detention as he is entitled to his rights. A further submission is made on behalf of the applicant that the applicant is also entitled to default bail in as much as the complaint in the instant case was filed without the requisite FSL report in the matter.
BAIL APPLN. 1301/2022 Page 1 of 4Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.07.2022 16:28:46 This file is digitally signed by PS to HMJ ANU MALHOTRA.
The status report that has been submitted by the NCB in the instant case indicates to the alleged recovery of 150 grams of heroin from the applicant on the date 26.10.2021, with it having been further submitted on behalf of the NCB that, in as much as, the alleged contraband was recovered from a red coloured bag recovered from the applicant, the parameters under Section 50 of the NDPS Act, 1985 would not apply.
The status report further indicates to the effect that the house search of the applicant has brought forth two Nigerian national passports recovered from the applicant in the name of Tobias Christian Ezeh and the other in the name of Amika Aniedo, a republic of Nigeria and the verification of both these passports indicates that both the passports i.e., in the name of Amika Aniedo and Tobias Christian Ezeh are not issued by the competent authority. The status report also reflects to the effect that the CRCL report which has already been submitted before the learned Trial Court confirms the presence of Heroin having been recovered from the applicant.
Reliance is inter alia placed on behalf of the NCB on the verdict of the Coordinate Bench of this Court in Madan Lama Vs NCB, Bail Application No. 1812/2021 a verdict dated 16.08.2021 to contend to the effect that even in a case where there is a contraband of lesser than the commercial quantity, the aspect of an accused being or not being entitled to bail would have to essentially be considered in terms of the harmful effect that the said contraband would have both economically and socially.
It is also submitted on behalf of the NCB that the likelihood of the applicant absconding cannot also be ruled out.
BAIL APPLN. 1301/2022 Page 2 of 4Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.07.2022 16:28:46 This file is digitally signed by PS to HMJ ANU MALHOTRA.
As regards the submission made on behalf of the applicant that the applicant is entitled to default bail in terms of Section 167(2) of the Cr.P.C., 1973, in view of the CRCL report having not been filed, it is essential to observe that the said aspect is still subjudice before the Hon'ble Apex Court.
Reliance is also being placed on behalf of the NCB on the verdict of the Coordinate Bench of this Court in Divyas Bardeva vs. NCB in Crl.Rev.P 368/2022, wherein inter alia there is a reference to the verdict of the Division Bench of this Court in Kishan Lal v. State, 1989 SCC OnLine Del 348 with observations in para 17 and 18 thereof which read to the effect:-
"17. As far as the expert's report is concerned, we may note that by virtue of sub-section (4) of Section 293 of the Code, any document purporting to be report under the hand of the Director or a Deputy Director of Assistant Director of a Central Forensic Science Laboratory of State Forensic Science Laboratory can be used as evidence in any inquiry, trial or other proceedings under the Code. It is true that it is open to the Court where it thinks fit to summon and examine the Government scientific expert. But he is not a formal witness and, therefore, no duty is cast upon the investigating officer to cite him as a witness.
18. We thus hold that under Section 173(2) of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Government Scientific expert. In the present cases, as cognizance of the offences taken by the Magistrate was proper and valid, no order releasing the petitioners on bail under Section 167(2) of the Code was required to be passed.", whereby cognizance taken in the absence of the Government scientific report has been held to be valid and it has been held that there is no BAIL APPLN. 1301/2022 Page 3 of 4 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.07.2022 16:28:46 This file is digitally signed by PS to HMJ ANU MALHOTRA.
requirement of releasing the persons on bail in terms of Section 167(2) of the Cr.P.C., 1973 in those circumstances.
During the course of the consideration of the present application, a submission is sought to be made on behalf of the applicant by learned counsel for the applicant that there are a catena of verdicts of this Court which would indicate to the effect that the applicant would be entitled to default bail in view of the non-submission of the FSL report.
The copies of the said judgments are directed to be placed on the record by the applicant during the course of the day with the copies thereof being supplied to the learned SPP for the NCB.
The matter is directed to be re-notified for 22.07.2022.
ANU MALHOTRA, J JULY 21, 2022 ha BAIL APPLN. 1301/2022 Page 4 of 4 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.07.2022 16:28:46 This file is digitally signed by PS to HMJ ANU MALHOTRA.