Madras High Court
Reserved On Pronounced On vs – State Of Tamil Nadu
Author: M.Dhandapani
Bench: M.Dhandapani
____________
CRL. O.P. No.7354/2022
CRL. O.P. NO.7354 OF 2022
Reserved on Pronounced on
21.06.2022 23.06.2022
M.DHANDAPANI, J.
The petitioner, who is arrayed as accused in R.R. No.5/2021 on the file of the respondent has filed the present petition seeking bail.
2. It is the case of the prosecution that based on information from the Security Executive of Aramex India Private Ltd., a courier company dealing with domestic and international courier consignments, the respondent reached the office of Aramex India Pvt. Ltd., and on the Security Executive identifying a parcel, which was said to have been booked by Dil Express Jhaver Plaza, Chenni, the same was opened and the parcel was said to contain 4.6 Kgs., of black coloured sticky substance, believed to be Hashish. The same was confiscated under mahazar and samples were drawn and sent to the forensic lab for analysis. 1/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022
3. Thereafter, the owner of Dil Express Jhaver Plaza was summoned and on enquiry, it revealed that one Ranjit Singh had booked the parcel to Qatar. Based on the said information, the said Ranjit Singh was enquired, which enquiry revealed that the parcel was booked by the petitioner and one Mohd. Mafix in the name of Amit Kumar Sarki for onward transmission to Qatar. Further enquiry revealed that Mohd. Mafiz had left for Kolkata and that the petitioner is to leave for Kolkata on 3.3.21. The respondents, thereafter, intercepted the petitioner at Kolkata Airport and upon enquiry, the petitioner gave a voluntary confession statement admitting his guilt in dealing with narcotic drugs and also admitted that the drugs seized at Aramex India Pvt. Ltd. Belongs to him, which was couriered at his instance , which resulted in the petitioner being arrested for the offences u/s 8 (c) r/w 20(B) (ii) (C) of the NDPS Act and produced before the Addl. Sessions Judge, NDPS Court, Barasat and was remanded to judicial custody. The petitioner, after being brought to the territorial jurisdiction of Chennai, custodial interrogation was sought for by the respondents and the petitioner filed Crl. M.P. No.1049/21 for bail before the Principal Special Judge, Principal Special Court, EC & NDPS Act, which rejected the bail petition of the petitioner. Therefore, the present petition is filed by the petitioner seeking bail. 2/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022
4. This is the second bail application filed by the petitioner and the earlier bail application in Crl. O.P. No.10366 of 2021 was dismissed by this Court vide order dated 6.7.2021. The present bail application is filed in view of the change in circumstances.
5. It is the submission of the learned counsel that the petitioner is in no way connected with the offence and that he has no criminal antecedents and that he hails from Kolkata and he has been wrongly roped in as the originator of the courier package. It is the further submission of the learned counsel that only after the arrest of the petitioner, the statement u/s 67 of the NDPS Act has been recorded and there was no information from any person as provided u/s 42 of the NDPS Act and, therefore, the said statement cannot be taken in aid of the arrest of the petitioner.
6. It is the further submission of the learned counsel that in the alleged summon issued u/s 67 of the NDPS Act, the place from which the summon was issued is not clear. It is the submission of the learned counsel for the petitioner 3/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 that while the summon is said to have been issued by the Zonal Unit, NCB, Chennai, however, it was allegedly issued by the Office of NCB at Kolkata and the summon has not been issued by the authority as claimed by the prosecution.
7. It is the further submission of the learned counsel that though a search conducted at the house of the petitioner’s residence at Kolkata, however, the said search did not result in seizure of any contraband and there is no material to connect the alleged contraband with the petitioner and the petitioner was not in possession of any contraband at any point of time. It is the further submission of the learned counsel that seizure was not effected in the presence of respectable inhabitants of the locality, but was made only in the presence of the informant and another employee of the courier company and, therefore, the seizure is not in accordance with Section 51 of the NDPS Act r/w Section 100 (4) Cr.P.C.
8. It is the further submission of the learned counsel that even the parcels were not booked in the name of the petitioner but in the name of some other person, who has not been shown as an accused in this case. 4/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022
9. It is the further submission of the learned counsel that the incriminating statement of one Ranjit Singh, recorded u/s 67 of the NDPS Act cannot be utilized by the prosecution to fasten the guilt on the petitioner as the said Ranjit has neither been shown as a witness nor as an accused. It is the further submission of the learned counsel that the statement of the petitioner recorded u/s 67 of the NDPS Act cannot be used against the petitioner as the same is barred to be received as evidence u/s 25 of the Evidence Act as the same was recorded by the investigating officers as laid down by the Hon’ble Supreme Court in the case of Tofan Singh – Vs – State of Tamil Nadu.
10. It is the further submission of the learned counsel that one of the accused is absconding and that he has not been granted bail, however, the said fact has not been placed before this Court by the prosecution, but this Court was informed that the said accused was denied bail, which has also weighed in the mind of this Court to reject bail. The petitioner is in no way connected with the alleged offence and there is no material connecting the petitioner with the contraband. It is the further submitted that the petitioner is a chronic diabetic 5/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 and suffering from various ailments and his continued incarceration is detrimental to his health and merely because the investigating agency could not conclude the investigation at an early date cannot be a ground to deny bail to the petitioner. Therefore, in view the above attendant and changed circumstances, the petitioner craves the indulgence of this Court for bail.
11. Per contra, learned learned Special Public Prosecutor appearing for the respondent submitted that the medical ailment of the petitioner would be no ground to grant bail to the petitioner, when the offence alleged is so grave in nature. It is the further submission of the learned Special Public Prosecutor that the circumstances pointed out by the petitioner are not changed circumstances, but were in existence even when the first bail petition was considered. It is further submitted that the petitioner on his own volition wanted to appear before the NCB at Kolkata, which request was acceded to by the respondents and the case of the petitioner that he was issued summon at Chennai, but investigated at Kolkata, which is a violation of the mandatory provision is not correct.
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12. It is the further submission of the learned Special Public Prosecutor that the arrival of the petitioner along with one Mohd. Mafiz, with whom the petitioner had a longstanding relationship and their stay at Chennai at Hotel Samundra Residency is proved by the fact that the reservation in the hotel is made in the name of the petitioner and the departure of Mohd. Mafiz and the petitioner are spoken to by independent witnesses, who have no axe to grind against the petitioner.
13. It is the further submission of the learned Special Public Prosecutor that the quantity of narcotic drugs which was seized to which link was established to the petitioner is a commercial quantity and, therefore, Section 37 of the NDPS Act comes into play and the petitioner cannot be granted bail for the reason that the quantity of contraband seized from the petitioner is a commercial quantity and in view of the bar u/s 37 of the NDPS Act, the petitioner cannot be granted the relief sought for.
14. It is the further submission of the learned Special Public Prosecutor that merely because no contraband was seized from the person of the petitioner 7/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 would not be taken in aid by the petitioner to assert his innocence, as other materials on record, in the form of the evidence of the witnesses and other persons, conclusively show that it is the petitioner, who is the perpetrator of the offence along with the aid of the other accused and he had tried to transport the consignment to Qatar and only to shield himself, he has used the identity of other persons in the transportation of the said consignment. There are ample materials, which unerringly point the finger on the petitioner on the petitioner as the perpetrator of the crime and, therefore, no leniency should be granted to the petitioner. Accordingly, he prays for dismissal of the present petition.
15. This Court paid its careful consideration to the submissions advanced by the learned counsel on either side and also perused the materials available on record.
16. This Court has, even on the last occasion, discussed in detail the ailments suffered by the petitioner along with the medical records and held that the said ailments would not warrant any lenient treatment at the hands of this 8/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 Court. The said ground cannot be said to be a changed circumstance warranting reconsideration of grant of bail to the petitioner.
17. Insofar as the contention to non-seizure of contraband from the person of the petitioner, as pointed out by the learned Special Public Prosecutor, there are ample materials, which, prima facie, point a finger at the petitioner as one of the accused in the transportation of the contraband. Coupled with the fact that it was the petitioner in whose name the hotel room was rented out and that the petitioner had close nexus with one Mohd. Mafiz and that with the help of Ranjit Singh and Mohd. Mafiz, the contraband was secured from the railway station and the parcel was booked for transportation to Qatar, the involvement of the petitioner in the transportation of the contraband cannot be ruled out at the threshold.
18. It is not disputed by the petitioner that there is a total bar u/s 37 of the NDPS Act with regard to grant of bail involving commercial quantity of contraband. A perusal of the materials available on record reveals that the quantity of contraband seized from the petitioner is a commercial quantity and, 9/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 therefore, the bar u/s 37 of the NDPS Act prohibiting grant of bail squarely gets attracted.
19. Though on the earlier occasion, this Court had recorded a finding that the bail petition with regard to the co-accused, viz., A-2, has already been dismissed by this Court on the ground of the contraband being of commercial quantity, however, it is fairly admitted by the learned Special Public Prosecutor that the said recording was erroneous and that A-2 is absconding and that no bail was filed by A-2. Merely because an erroneous statement has been recorded with regard to bail for A-2, who, it is stated, is absconding, that cannot be taken to be a changed circumstance warranting consideration of bail to the petitioner. The case of the petitioner has to be dealt with on the materials available against him coupled with the nexus and the acts of the other accused in the conspiracy. Merely because one of the accused, viz., A-2 is absconding, which has wrongly recorded as if his bail application has been dismissed cannot be said to be a changed circumstance of such a nature that it would enure to the benefit of the petitioner.
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20. Insofar as the contention of the petitioner that the statement recorded u/s 67 cannot be taken in aid of by the prosecution to oppose bail as the said statement is barred u/s 25 of the Evidence Act, however, it is to be pointed out that all those contentions and relative value of the evidence could be weighed only at the time of trial and it cannot form the basis for considering the case of the petitioner for bail.
21. For the reasons aforesaid, the circumstances pointed out above cannot be held to be changed circumstance which would enure to the benefit of the petitioner in consideration of his application for bail. The said circumstances would in no way materially alter the position of the petitioner insofar as this case is concerned and no clinching material is placed before this Court to enable this Court to take a view from the one already taken by this Court and, therefore, bail, as sought for by the petitioner, cannot be acceded to and, accordingly, this petition deserves to be dismissed. Accordingly, this criminal original petition is dismissed.
23.06.2022 11/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 GLN 12/13 https://www.mhc.tn.gov.in/judis ____________ CRL. O.P. No.7354/2022 M.DHANDAPANI, J.
GLN CRL. O.P. NO.7354 OF 2022 23.06.2022 13/13 https://www.mhc.tn.gov.in/judis