Karnataka High Court
Emmanuel Aremu @ Ikechuk Wu Ugochukwu vs Intellegence Officer on 12 March, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.3090/2017
BETWEEN:
EMMANUEL AREMU @
IKECHUK WU UGOCHUKWU
@ RAYMOND UGOCHUKWU
S/O AREMU
AGED ABOUT 38 YEARS,
NAMIBIAN NATIONALITY
PASSPORT NO. P0021840
... PETITIONER
(BY SRI HASHMATH PASHA, ADVOCATE)
AND:
INTELLEGENCE OFFICER,
NARCOTICS CONTROL BUREAU
BANGALORE ZONAL UNIT
RAMANNA GARDEN,
KATTIGENAHALLI,
BAGALUR MAIN ROAD,
YELHANKA POST,
BANGALORE - 560 001.
... RESPONDENT
(BY SRI K. N. MOHAN, SPL PP)
******
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN SPL.C.C.NO.337/2016 (NCBF,48/1/2/2016BZU)
FOR THE OFFENCE P/U/S 8(C) R/W 20(b),21,23,28 OF
NDPS ACT ON THE FILE OF XXXIII ADDITIONAL CITY CIVIL
AND S.J., AND SPL. JUDGE (NDPS), BANGALORE.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused No.1 under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Sections 8(C) read with Section 20(b), 21, 23 and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985, registered in respondent - NCBF No.48/1/2/2016BZU.
2. Brief facts of the prosecution case that on the credible information on 08.02.2016 at 06.00 hours that the petitioner having passport bearing 3 No.P0021840 is carrying a huge quantity of Cocaine and coming from Abudhabi to Kempegowda International Airport Bangalore through Eithad Air Ways flight No.EY 286 on 08.02.2016. Accordingly, a team of Officers from NCB, Bangalore Zonal Unit proceeded to Airport on 08.02.2016 and approached two persons and told them about the information regarding drug trafficking and they were requested to be witnesses for the entire panchanama proceedings, for which they agreed. Then the NCB team along with the witnesses proceeded to International Arrival Immigration area of Airport. At about 8.40 am a person of Namibian origin aged around 38 years came to International Arrival Immigration Area with one hand baggage. The passport is verified with information and found to be tallied as P0021840. Then the officer of the NCB intercepted the person and introduced himself as Intelligence Officer of NCB by showing his Identity Card and introduced the 4 panchas. The NCB Officer informed about the secret information to the petitioner and the NCB officers asked petitioner about his name and his identity. Then NCB Officers expressed their intention to conduct his personal search and search of his baggage for which the petitioner gave his consent. Then the NCB Officers served notice under Section 50 of NDPS Act to petitioner and explained to him that he has legal right to ask for his search to be conducted in the presence of Gazetted Officer or Magistrate to which he declined and gave in writing that, any present NCB Officer can take his search. During his personal search, one capsule containing 17 grams of Cocaine was seized. The petitioner informed the officials that he is carrying several Capsules of Cocaine in his stomach and complained of stomach pain. He was immediately taken to a Doctor at the airport who advised to shift him to City Hospital. He was immediately taken to Victoria 5 Hospital, Bengaluru, in ambulance immediately where the Doctors examined him and conducted his body scan. As per scan report, there were several capsules inside his body. Further 1185 grams of Cocaine from 69 capsules was recovered from his stools at the Hospital and thereafter, petitioner was examined under Section 67 of NDPS Act by respondent and gave his voluntary statement by admitting that he had the knowledge and he is involved in drug trafficking and the NCB officials arrested the petitioner on 11.02.2016 at about 22.00 hours for contravention of the Provisions of Section 8(c), read with Section 21, 23 and 28 of NDPS Act 1985, and produced him before the XXXIII Addl. City Civil and Sessions Judge and Spl. Judge (NDPS), Bengaluru, in 48/1/2/2016BZU (CIS.Crime No.101/2016) and the said court remanded the petitioner to judicial custody and since then he is in judicial custody. 6
The petitioner sought for his release on bail on the grounds as mentioned at ground Nos.7 to 21 in the bail petition.
3. The prosecution opposed the petition by filing the objection statement. The respondent-NCB seriously objected the release of the petitioner on bail contending that the petitioner/accused has been arrested with 1.202 Kgs of Cocaine for which the minimum punishment is 10 years of rigorous imprisonment. Petitioner will try all his efforts to avoid the prosecution/trial by intimidating the witnesses, tamper with the evidences and again indulge in drug trafficking/smuggling and other illegal activities. The petitioner was traveling for the first time on his passport No.P0021840, on verifying about his details from the FRRO, it was learnt that no information is available with them about the petitioner/accused, therefore, this 7 clearly, shows that the petitioner has obtained the passport through unfair means. Hence, his details have been concealed. It has been noticed that most of the foreigner accused abscond once they are enlarged on bail, they also submit fake sureties and then the prosecution of the case suffers, which is clear injustice to the several youths of the Society, who have been engulfed to the drug menace.
The petitioner himself clarifies that he is not having any base in India; hence it is obvious that he would abscond from India in order to escape the prosecution. Besides, it is also humbly submitted that none of his family or relatives have approached for his support. The petitioner has no local residence in India, nor is having any legal source of earning for his livelihood. The address given in his bail petition is solely the address for the purpose of notices till he is in jail. In the above circumstances, if the petitioner/accused is 8 enlarged on bail, it is obvious that he will succumb to illegal ways for his sustenance, unless he escapes from India and in both the cases, the prosecution will suffer. The seized quantity of the drug is 1.202 Kgs of Cocaine, whereas the commercial quantity is only 100 grams. Hence, it can be easily inferred that he is a big trafficker of the Cocaine. The petitioner immediately accepted that he has swallowed huge quantity of Cocaine capsules for its smuggling and also said that he has kept one such capsules in the pocket of his jacket. The petitioner requested the seizing officer that he wanted to be shifted to hospital as he feared that the capsules may burst and he may die instantly.
There are sufficient evidences viz., the seizure, the confessional voluntary statement, the independent witnesses, the medical observation report, which clearly show that the petitioner/accused had concealed Cocaine capsules inside his body and further recovery of 9 the same and the documents prepared on the spot. The petitioner was allowed to pass motion in the presence of Doctors and witnesses and one White colour solid elliptical substance in the form of capsule covered with transparent polythene tape was recovered and the Doctors handed over same to Sri.Samiran Paul, Intelligence Officer, NCB, then the NCB officials opened the transparent polythene tape from the suspected solid elliptical substance. Then, white colour suspected solid elliptical substance was crushed and tested with DD Kit which was available with NCB team and it gave positive for Cocaine. It is also contended that NCB officers approached two persons and identified themselves by showing their identity and told that they have information regarding trafficking and requested to be witnesses for the panchanama proceedings, for which they agreed. Then the NCB officers told that secret and reliable information is received about the petitioner. 10 Then they proceeded to the spot and kept watch at International arrival Immigration area of Airport. At about 8.40. a.m. a person of Namibian origin aged around 38 years came to international Arrival Immigration Area with one hand baggage. Hence, on these grounds the prosecution opposed the petition.
4. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned Special Public Prosecutor appearing for the respondent/NCB.
5. Learned counsel for the petitioner during the course of his arguments has submitted that looking into the prosecution material, there is no prima-facie case made out against the petitioner of his involvement in committing the alleged offence. It is also his submission that there is non-compliance of mandatory 11 requirements of Section 42(2), so also, Section 50 of NDPS Act. He drew the attention of this Court to page No.43 of the petition regarding the notice under Section 50 of NDPS Act and submitted that the said notice is not in accordance with the mandatory provisions of Section 50 of NDPS Act. It is also his submission that though the petitioner was apprehended on 08.02.2016 immediately after he arrived in Bengaluru International Airport, he was kept in illegal custody till 11.02.2016 on which date his arrest has been shown, hence, this itself clearly shows that the petitioner has been kept in illegal confinement without complying with the provisions of Section 57 of Cr.P.C., as the petitioner has not been produced before the concerned Court within 24 hours from the time of arrest excluding the period taken for journey. Learned counsel has further submitted that the qualitative and quantitative test reports are also not received within the time schedule of 15 days and 30 12 days respectively. He also submitted that there are standing instructions issued by the Narcotics Control Bureau, New Delhi, and as per standing instruction No.1.18 it is necessary to get the test report expeditiously within the period of 15 days and 30 days and even till today such reports are not received. He also submitted that standing instructions are also having force of law as per the dictum of Hon'ble Apex Court. It is also his submission that non-compliance of mandatory provisions of NDPS Act is a relevant factor which the Court has to take into consideration even while deciding the bail petition.
Learned counsel also refer to the principles enunciated in the decisions relied upon by him, which are produced as per list of citations dated 20.02.2018 and submitted that the investigation is completed and charge sheet is also filed, the case is pending since two years and even there is no progress in the case and even 13 it may take longer time to conclude the trial, therefore, the fundamental right of the accused person regarding the speedy trial of the case under Article 21 of Constitution of India is also affected. He also submitted that the alleged offences are also not exclusively punishable with death or imprisonment for life. Hence, submitted to allow the petition and to grant bail to the petitioner by imposing reasonable conditions. In support of his contentions, learned counsel for the petitioner has relied upon the decisions filed along with the list of authorities dated 20.02.2018. i. Copy of Standing Instructions No.1/88; ii. Unreported decision of Hon'ble High Court in Crl.P No.8644/2017 in the case of Ben Okoro vs. State of Karnataka;
iii. (2009) 12 SCC 161 in the case of Union of India vs. Bal Mukund and others;
iv. (2004) 12 SCC 266 in the case of Sarija Banu alias Janarthani alias Janani and another vs. State Through Inspector of Police;
14
v. AIR 2013 SC 357.
vi. (2006) 12 SCC 321 in the case of Ritesh
Chakarvarti vs. State of M.P.;
vii. (2011) 1 SCC 609 in the case of Vijaysinh
Chandubha Jadeja vs. State of Gujarat;
viii. (2017) 8 SCC 162 in the case of Hira Singh vs. Union of India;
ix. (2008) 5 SCC 161 in the case of E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau;
x. 2009 Crl.L.J. 1306 in the case of Sami Ullaha vs. Superintendent, Narcotic Central Bureau; and xi. Reported decision of Hon'ble High Court in Crl.P No.303/2017 in the case of Chandru Kunthus Raghuvegowda Vs. State by Inspector of Customs.
6. Per contra, learned Spl.P.P. made submission that the requirements of Sections 42 and 50 of NDPS Act have been complied with. He submitted that immediately after receipt of the credible information, the same came to be reduced into writing 15 in the diary kept for the said purpose and even the intimation about the said information was sent to the superior officer and obtained instruction for proceeding further in the matter. The learned Spl.P.P. also made submission that before conducting personal search of the petitioner-accused, he was explained about his legal right to exercise the option whether his personal search is to be conducted before the Magistrate or before the gazetted officer. In response to the same, the petitioner- accused told that NCB officer can conduct the personal search.
The learned Spl.P.P. further submitted that after conducting the personal search, the NCB police found one capsule in the pocket of jacket of the petitioner and by using DD kit, tested the same and it was 17 gms. found to be cocaine. The petitioner accused requested the NCB police that he is getting pain in the stomach and immediately, he may be taken to the hospital. 16 Accordingly, the petitioner-accused was taken to the hospital and he urged for motion. In the presence of the witnesses, who are the doctors, the petitioner-accused was allowed to have motion and number of times, he urged for the same through out the day. From time to time, the capsules found were kept in the polythene cover with tape material and thus, the capsules were also separately and independently tested by using the DD kit and found that it was cocaine material. Then, it was mixed up properly and some quantity for sample were taken out and then it was packed and sealed. The learned Spl.P.P. made further submission that there is a report from the FSL regarding the material that it is cocaine. It is also submitted that during investigation, voluntary statement of the petitioner-accused came to be recorded wherein the petitioner has admitted that he consumed the capsules containing cocaine material. Hence, the Spl.P.P. submitted that looking to the 17 materials collected during investigation, they prima facie show the involvement of the petitioner-accused in committing the alleged offence.
The learned Spl.P.P. also submitted that the petitioner-accused is the Namibian national and on enquiry, it was noticed that the petitioner is not having any business establishment in India and if released, it is very difficult to secure him during the course of trial. He may abscond and the possibility of again he involving in committing the similar offences is not completely ruled out, at this stage. The quantity seized is also more than the commercial quantity. Hence, the learned Spl.P.P. submitted to reject the bail petition.
7. I have perused the grounds urged in the bail petition, objection statement filed by the prosecution, the documents produced by the learned counsel for the petitioner along with the petition and also the entire 18 charge sheet material, so also, the decisions relied upon by the learned counsel for the petitioner, which are referred above.
8. The first and foremost contention of the learned counsel for the petitioner is that the mandatory requirements of Section 42 and 50 of NDPS Act are not complied with in this case. It is his contention that compliance of mandatory requirements is necessary and it is a relevant factor, which the Court can taken into consideration even while considering the bail petition. In this connection, perusing the materials produced by the prosecution i.e., information under Section 42 of NDPS Act, which is dated 08.02.2016, wherein the time is mentioned as 6.00 hours, the contents of the document reads as under:
"Secret and reliable information is received that 'Emmanuel Aremu', Namibian national, 19 having passport number P0021840 is carrying huge quantity of Cocaine and coming from Abu Dhabi to Kempegowda International Airport, Bangalore through Eithad Airways flight No.EY 286 on 08.02.2016."
The said information is submitted by the Intelligence Officer, NCB, Bengaluru. This material show that immediately after the receipt of the information, the same was reduced into writing as to what is the exact credible information received in the matter, therefore, there is compliance of Section 42(1) of NDPS Act. The materials also show that the information was sent to the immediate superior officer for needful action in the matter making a request to constitute a team and take action as per law. Even in the objection statement also it is contended by the prosecution that there is compliance of mandatory requirement of Section 42 of NDPS Act.
20
9. Regarding the personal search is concerned, the prosecution material shows that they informed the petitioner/accused that NCB officers have got the information that the petitioner is carrying Cocaine and they want to conduct his personal search, they have also explained him that he is having the legal right of exercising his option whether his personal search is conducted before the Magistrate or before the Gazetted Officer, if he so desires, and in that connection prosecution produced the notice under Section 50 of NDPS Act dated 08.02.2016 addressed to Emmanuel Aremu, Namibian National, passport No.P0021840, the contents of the said notice reads as under:
"You are hereby informed that we have reliable information that you are carrying Cocaine for which your search is to be conducted. As per your legal right your search can be conducted before a Gazetted officer or a magistrate, if you so desire. You 21 can also take the search of the raiding party prior to your search."
The reply made by the petitioner for the said notice is also noted in the said notice itself, which reads as under and it bears the signature of the petitioner with date:
"I don't want presence of any
magistrate or gazetted officer any NCB
Official can take my search. I am feeling
uneasy and I request you to take me to
hospital."
So this notice under Section 50 of NDPS Act shows that before conducting the personal search of the petitioner, the NCB Officers explained the petitioner about his legal right for exercising his option before whom it is to be conducted i.e., either before the Gazetted Officer or before the Magistrate.
22
10. Looking into the objection statement, so also, considering the oral submission made by the learned Spl.PP., I am of the opinion that even with regard to Section 50 of NDPS Act, there is compliance of the said requirement, therefore, the contention of the learned counsel for the petitioner that mandatory requirements of Section 42 and 50 of NDPS Act are not complied with cannot be accepted at all.
11. Learned counsel for the petitioner referring to the standing instructions issued by the Narcotic Control Bureau, New Delhi, as per Annexure-1, drew the attention of this Court to instruction No.1.18, which reads as under:
1.18 Expeditious Test:
"Expeditious analysis of narcotic drugs and psychotrophic substances is of essence to all proceedings under NDPS Act, 1985. In 23 many cases the court may refuse to extend Police/judicial remand beyond 15 days in the absence of a chemical report. Accordingly, it is essential that the analysis is completed and the report is longer dispatched within 15 days from the date of receipt of the sample. However, where quantitative analysis requires longer time, the results of the qualitative test should be dispatched to the officer from whom the samples were received within the aforesaid time limit on the original copy of the test memo so that court proceedings can start immediately. In the next 15 days the results of quantitative test (purity of the drug) should also be indicated on the duplicate test memo and sent to the officer from whom the samples were received."
It is the contention of the learned counsel for the petitioner that no qualitative and quantitative test reports are received in the case, hence, there is non- compliance of the requirement of standing instruction 24 i.e., 1.18. It is no doubt true, learned counsel for the petitioner relied upon the decisions of the Hon'ble Apex Court that the standing instructions issued from the Narcotic Control Bureau are having the force of law. Therefore, the said compliance is considered to be a mandate and in this connection I have perused the decisions of Hon'ble Apex Court.
12. Perusing the decisions of the Hon'ble Apex Court relied upon by the learned counsel for the petitioners, regarding the test report, no doubt as per standing instruction 1.18 insofar as the qualitative test report is concerned, it is to be obtained within a period of 15 days from the date of sending the material to FSL and insofar as the quantitative test report is concerned, it is to be obtained within 30 days from the date of referring the material to FSL. Learned counsel for the petitioner while arguing the matter, has submitted that 25 the qualitative test report and quantitative test reports are not at all received from the FSL till today, but the said submission is not correct, because in the bail order dated 01.04.2017 passed by the learned Spl.Judge in Crl.Misc.No.1519/2017, it is mentioned in paragraph No.10 at page No.6, "It is true that after lodging complaint cognizance was taken on 2.8.2016. No test report is submitted along with complaint. Later, on 19.9.2016 test memo report submitted by I.O. As per opinion of the expert sample responded positive for the presence of cocaine."
13. The materials show that the NCB officer was making a request to FSL to send the analysis report immediately. The materials also show that there is a letter dated 06.09.2016 by one Seema Srivastava, Assistant Director (NAA), Central Forensic Science of Laboratory, DFSS, MHA, Govt. of India, Ramanthapur, 26 Hyderabad. The said letter is accompanied by the examination report i.e., with regard to the qualitative test report, the results of the examination are mentioned at point No.12, which reads as under:
"12. RESULTS OF EXAMINATION:
The Exhibits were appropriately
analyzed by colour test, UV-Visible
Spectrophotometry, Gas Chromatography - Mass Spectrometry (GC-MS) and Fourier Transform-Infrared Spectroscopy (FT-IR) methods. Based on the above methods, the results obtained are given below:
1.Cocaine has been detected in Exhibits-S1 to S21.
2.Polyethylene has been detected in Exhibit-
P2 and P22."
14. Therefore, looking into the chemical examiners report, at this stage, it prima-facie shows that the materials seized from the possession of the 27 petitioner herein contains Cocaine. It is true, the said report ought to have been obtained within 15 days from the date of sending the material to FSL, but it was obtained on 19.09.2016, as I have already observed ,above there are letter correspondence by the I.O., NCB with the FSL to send the test report immediately. When the test report is before the Court, while considering the bail petition only on the ground that it was not received within 15 days time, the entire materials and the case of the prosecution cannot be rejected. The qualitative test report prima-facie makes it clear that the materials seized contain Cocaine.
15. When the petitioner was complaining of stomach pain and made a written request to the NCB Police that he wants to be immediately taken to the hospital, accordingly, he was taken to the hospital and when he urges for motion it was in the presence of 28 panch witnesses, who are Doctors, number of times such motion was allowed and every time whatever the materials found i.e., capsules, were mentioned in the panchanama in the presence of panch witnesses, totally 69 capsules were found, which came out through stool of the petitioner.
16. During investigation the voluntary statement of the petitioner was recorded under Section 67 of NDPS Act, wherein he has stated that he wanted to purchase clothes in India to take them to South Africa for the purpose of selling them at a higher price. He also stated that he contacted one Chris, who is living in Sao Paulo, Brazil, and he helped the petitioner financially and even get the ticket for him and gave some material to carry to India. So his statement clearly shows that he was carrying the Cocaine while traveling to India, even he has admitted that he consumed the capsules. He also 29 stated that the friend of Chris has brought Cocaine packed in plastic tape, in big pellet shape, he had brought many of them of. On being asked, he stated that he did not know how many pellets were there, who had packed them and where they were packed and he also gave him a tablet to ease the swallowing process and the petitioner consumed the tablet and started swallowing the Cocaine pellets by 6.00a.m. and he was able to swallow 70 pellets till 4.00p.m. and he told Chris's friend that he cannot swallow any more.
17. Therefore, at this stage the materials prima- facie show that the petitioner has given such voluntary statement before the NCB Police. The material collected during investigation shows that the petitioner is neither having any business establishment in India nor he is having any permanent address in India; his voluntary statement also show that though he has been called as 30 'Emmanuel Aremu', but his real name is 'Ikechukwu Ugochukwu' and is also having another name i.e., 'Raymond Ugochukwu' and his father's real name is George Ugochukwu. In the cause title of the petition, his father's name is mentioned only as Aremu, Therefore, at this stage it shows that the address furnished in the cause title is also not correct even according to statement of the petitioner.
18. The materials show that the petitioner came to India for the purpose of purchase of clothes as per his voluntary statement and he was carrying such Cocaine material along with him. Therefore, considering these materials, the learned Spl.PP. is justified in making his submission that in case if the petitioner is released on bail it will be very difficult to secure his presence during the course of trial and even he may abscond and also he may involve in committing 31 the alleged offence. The quantity of Cocaine seized is more than the commercial quantity.
19. In view of the factual matrix that I have discussed pertaining to the case on hand, the decisions relied upon by the learned counsel for the petitioners are not coming to the aid and assistance of the petitioner's case as the facts and circumstances in those reported decisions are not exactly one and the same with that of the facts and circumstances in the case on hand.
Considering all these aspects of the mater, I am of the opinion that it is not a fit case to exercise discretion in favour of the petitioner and to release him on bail. Accordingly, petition is hereby rejected.
Sd/-
JUDGE BSR/CS