Karnataka High Court
Pamela Abigail Decker vs Superintendent Of Customs on 10 September, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:36890
CRL.P No. 7758 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 7758 OF 2024
BETWEEN:
PAMELA ABIGAIL DECKER
W/O DAVID MICHEL
AGED ABOUT 42 YEARS
D.O.B. 22/08/1982
PASSPORT NO.ER371749
ISSUED BY REPUBLICA OF
SIERRA LEONE
RA/T AT GUIENA
CONAKRY - 110 101.
...PETITIONER
(BY SRI BASAVARAKI T.A, ADV.)
AND:
SUPERINTENDENT OF CUSTOMS
AIR INTELLIGENCE UNIT-B
OFFICE OF PRINCIPAL COMMISSIONER
Digitally OF CUSTOMS, AIRPORT AND AIR
signed by
NANDINI MS CARGO COMPLEX, KEMPEGOWDA
Location: High INTERNATIONAL AIRPORT
Court of
Karnataka BENGALURU - PIN - 560 300
REPRESENTED BY SPECIAL PUBLIC
PROSECUTORS OFFICE
HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
AMBEDKAR VEEDI
BENGALURU - 560 001.
...RESPONDENT
(BY SRI UNNIKRISHANAN M, ADV.)
THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE
THEM ON BAIL IN FILE NO.VII/48/81/2022-23 AIU, FOR AN OFFENCE
P/SU/ 8(c),22(c),23(C),28 AND 29 OF NDPS ACT WHICH IS PENDING
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NC: 2024:KHC:36890
CRL.P No. 7758 of 2024
ON THE FILE OF THE HONBLE XXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS ACT AT
BENGALURU CITY IN SPL.C.C.NO.1677/2023.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
Accused in Spl.C.C.No.1677/2023 pending before the Court of XXXIII Addl. City Civil & Sessions Judge & Special Judge for NDPS Act, Bengaluru City, arising out of Crime No.VIII/48/81/2022-2023 AIU-B Cus registered by the Superintendent of Customs, Air Intelligence Unit-B, Kempegowda International Airport, Bengaluru, for the offences punishable under Sections 8(c), 22(c), 23(c), 28 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS' Act) is before this Court seeking regular bail.
2. Heard the learned counsel appearing for the parties.
3. The Intelligence Officer of the Customs, Kempegowda International Airport on the basis of credible -3- NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 information received on 14.01.2023 had intercepted a foreign passenger who arrived from Dubai to Bengaluru in Emirate Airways and the said passenger who had revealed her name as Pamela Abigail Decker was intercepted and her luggage was checked. However, no contraband article was recovered from her luggage. Since the suspect complained about stomach disturbance, she was subjected to CT scan and it was found that contraband article covered with capsule was inside her stomach. The capsules were removed under medical procedure from the stomach of the suspect and it was found that contraband article cocaine totally weighing 686.24 grams was concealed and carried by the petitioner in the capsules, which were found in her stomach. The seized contraband article was subjected to panchanama and thereafter the petitioner was arrested and produced before the jurisdictional Court and remanded to judicial custody on 19.01.2023. Investigation in the case is completed and a complaint is filed before the jurisdictional Court on -4- NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 11.07.2023 against the petitioner for the aforesaid offences.
4. The bail application filed by the petitioner before the jurisdictional Sessions Court in Crl.Misc.No.11640/2023 was dismissed on 07.12.2023. Therefore, she is before this Court.
5. Learned counsel for the petitioner submits that the petitioner is a lady aged about 40 years. She is in custody for the last 20 months. Trial in the case is yet to commence. He submits that in view of long period of incarceration of the petitioner, she may be enlarged on bail.
6. Per contra, learned counsel for respondent has filed statement of objection and has opposed the petition. He submits that since commercial quantity of contraband article has been recovered from the petitioner, in view of Section 37(1)(b) of the Act her bail application is liable to be rejected. He also submits that petitioner is a foreign -5- NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 national and she is likely to flee away from justice. Accordingly, he prays to dismiss the petition.
7. The petitioner who is a foreign national was intercepted in Kempegowda International Airport, Bengaluru on 14.01.2023 on the basis of credible information and a total quantity of 686.24 grams of cocaine which was concealed in capsule was recovered from her stomach and thereafter she was produced before the Court and remanded to judicial custody on 19.01.2023. Investigation in the case is complete and charge sheet has been filed. Undisputedly, trial in the case is yet to commence. The petitioner is in custody for the last 20 months.
8. The Hon'ble Supreme Court in the case of MOHD. MUSLIM ALIAS HUSSAIN V. STATE (NCT OF DELHI) - 2023 SCC ONLINE SC 352 at paragraph Nos.18, 19 and 20, has observed as follows:
"18. The facts in this case reveal that the recovery of ganja was made on 28.09.2015, from the four co-accused, including Nitesh Ekka.-6-
NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 The present appellant was arrested at the behest, and on the statement of this Nitesh Ekka. The prosecution has relied on that statement, as well as the confessional statement of the present appellant; in addition, it has relied on the bank statements of Virender Singh @ Beerey, who allegedly disclosed that money used to be transferred to the appellant. As against this, the prosecution has not recovered anything else from the appellant; its allegation that he is a mastermind, is not backed by any evidence of extensive dealing with narcotics, which would reasonably have surfaced. The prosecution has not shown involvement of the appellant, in any other case. Furthermore, he was apparently 23 years of age, at the time of his arrest. It is an undisputed fact that two co-accused persons (who also, were not present at the time of raid and from whom no contraband was recovered) - the accused (Virender Singh @ Beerey) who allegedly transferred money to the appellant's account as payment for the ganja, and the accused (Nepal Yadav @ Tony Pahalwan) from whom the original insurance papers and registration certificate of the car from which contraband was seized, was recovered18 - have both been enlarged on bail. The appellant has been in custody for over 7 years and 4 months.-7-
NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 The progress of the trial has been at a snail's pace : 30 witnesses have been examined, whereas 34 more have to be examined.
19. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any -8- NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice : even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the -9- NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."
9. In the case of JAVED GULAM NABI SHAIKH V. STATE OF MAHARASHTRA AND ANOTHER - 2024 SCC ONLINE SC 1693 at paragraph No.19, the Hon'ble Apex Court has observed as follows:
"19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime".
10. In the case of Chitta Biswas Alias Subhas vs. State of West Bengal reported in 2020 SCC OnLine SC 1536, the Hon'ble Supreme Court taking into
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NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 consideration that the accused was in custody for a period of one year seven months and there was no sufficient progress in trial, without expressing any opinion on merits and demerits of the case, has granted regular bail to the accused. In the case of Nitish Adhikary alias Bapan vs. State of West Bengal reported in 2022 SCC OnLine SC 2068 in a case where charge sheet was filed for the offences punishable under Sections 21(c) and 37 of the NDPS Act and accused was in custody for a period of one year seven months, the Hon'ble Supreme Court has granted regular bail on the ground that trial is still in the preliminary stage, as only one witness was examined.
11. Though learned counsel for the petitioner has also submitted that there is no compliance of Section 50 of the Act in the present case, without going into the merits of the case, I am of the opinion that on the ground of considerable period of incarceration of the petitioner her prayer for grant of bail needs to be answered affirmatively. However, apprehension of learned counsel
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NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 for respondent that the petitioner, who is a foreign national, is likely to flee away from justice cannot be brushed aside.
12. The coordinate bench of this Court in the case of BABUL KHAN & OTHERS V. STATE OF KARNATAKA& ANOTHER in Crl.P.No.6578/2019 disposed of on 19.05.2020 has laid down certain guidelines to be followed by the Court while granting bail to foreign national, who does not hold a valid visa and passport. Undisputedly, the petitioner has no valid documents as on this date to stay in India. The petitioner who is a foreign national is required to be detained in detention centre at Bengaluru till the case registered against her is disposed of. The guidelines laid down by the coordinate bench of this Court in BABUL KHAN's case (supra) and also the directions and guidelines of the Hon'ble Apex Court in the case of UPADHYAYA VS STATE OF A.P. & OTHERS - (2017) 15 SCC 337, shall be strictly taken into consideration and followed by the competent authorities and the Trial Court
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NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 shall periodically call for reports in this regard from the competent authorities.
13. Considering the aforesaid aspects of the matter, I am of the opinion that the prayer made by the petitioner for grant of regular bail is required to be answered affirmatively subject to appropriate conditions.
14. Accordingly, the following:
ORDER The petitioner is directed to be enlarged on bail in Spl.C.C.No.1677/2023 pending before the Court of XXXIII Addl. City Civil & Sessions Judge & Special Judge for NDPS Act, Bengaluru City, arising out of Crime No.VIII/48/81/2022-2023 AIU-B Cus registered by the Superintendent of Customs, Air Intelligence Unit-B, Kempegowda International Airport, Bengaluru, for the offences punishable under Sections 8(c), 22(c), 23(c), 28 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985, subject to the following conditions:
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NC: 2024:KHC:36890 CRL.P No. 7758 of 2024
a) The petitioner shall be released on bail on executing her personal bond for a sum of Rs.2 lakh with two sureties for the like sum to the satisfaction of the Trial Court.
b) The Trial Court is hereby directed that, at the time of releasing of the petitioner on bail, the Competent Authorities shall be informed to detain her in any of the Detention Centers in Bengaluru, till the trial is concluded.
c) It is also made clear that, under Section 3(2) of the Foreigners Act, if the
Competent Authority feels that, by means of imposing restrictions on the movements of the petitioner by taking bond with or without surety for the observance or as on alternative to the enforcement of any of the prescribed or specific restrictions or conditions can control their movements, such orders may be passed by the Competent Authority with intimation to the Court.
d) The petitioner shall not indulge in hampering or tampering the prosecution witnesses and she shall be made available to the Court on all the future hearing dates unless she
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NC: 2024:KHC:36890 CRL.P No. 7758 of 2024 is exempted by the Court for any genuine reasons or cause.
e) The petitioner however, shall not leave the jurisdictional of the Trial Court without prior permission till the case registered against her is disposed of.
f) The petitioner's passport shall be surrendered before the Trial Court and shall remain in the custody of the Trial Court until further orders is passed by the Trial Court with regard to custody of the passport or till the case is disposed of before the Trial Court.
SD/-
(S VISHWAJITH SHETTY) JUDGE NMS