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The present bail application has been filed by the petitioner under Section 439 Cr. P.C and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE RAJNISH BHATNAGAR, in the matter KELVIN GEORGE KATINDASA V. NARCOTICS CONTROL BUREAU dealt with an issue mentioned above.

Briefly stated, the facts of the case which was dated 10.01.2019, were firstly intercepted at IGI airport while he was travelling to Dar-Es-Sallam via Doha and during the search, 24.5kg of Pseudoephedrine was recovered. Petitioner had disclosed that he came to Delhi along with his brother Nagar and stayed at the hotel, later the suitcase was collected by the INA market, which was supposed to be handed over to Nagar in Tanzania.

Meanwhile on 18.02.2019 accused Nagar was also intercepted at Mumbai airport based on LOC, Accused Nagar also accepted his guilt and the mobile phones of accused persons were examined which proved him to be so.

Ld. counsel for the petitioner, Ld. counsel for the respondent (NCB), perused the records of this case and the Status Report filed by the respondent (NCB). He further also submitted that how the samples were drawn was not as per law as the sample was not taken from each packet and this is a violation of law in drawing the sample of drugs.

Later he submitted that a petitioner is a young person who has been falsely implicated in the present case and submitted that while issuing notice U/s 50 NDPS Act, the mandatory provisions of Section 50 NDPS Act have not been followed. He further submitted that in the instant case the embargo of Section 37 NDPS Act is not applicable.

Ld. counsel for the petitioner has relied upon the following judgments:

• Judgment dated 13.03.2020, passed by this Court in Crl. Appeal No. 1027/2015 titled Amani Fidel Chris Vs. Narcotics Control Bureau.
• Ram Narayan Vs. State 2005 [2] JCC [Narcotics] 170.
• Sujit Tiwari Vs. The state of Gujarat and another 2020 (1) Crimes 141 (SC).

Ld. counsel for the respondent that the allegations against the petitioner are grave. He further submitted that the bail of the co- BAIL APPLN. 3149/2020 Page 4 of 7 accused has been dismissed by this court vide order dated 24.11.2020. He further submitted that the petitioner is a part of a drug syndicate dealing in drug trafficking and the petitioner is a foreigner and he may abscond if released on bail.

Ld. counsel for the respondent (NCB) has relied upon the following judgments :

• State of Gujrat Vs. Salimbhai Abdulgaffar Sheikh & Ors. (2003) 8 SCC 50.
• State through Secretary, Central Narcotic Department, Lucknow Vs. Syed Amir Hussain (2002) 10 SCC 88.
• Achint Navinbhai Patel alias Mahesh Shah Vs. State of Gujarat & Anr. (2002) 10 SCC 529.

And few more facts were mentioned by the advocate.

The other contention of the counsel for the petitioner is that embargo of Section 37 of the NDPS Act is not applicable as the substance recovered is neither a narcotic drug nor a psychotropic substance. The Supreme Court also referred to the case of the Union of India Vs. Prateek Shukla, Criminal Appeal No. 284 of 2021 decided on 08.03.2021 were they had cancelled the bail of the petitioner who was found in possession of a controlled substance namely acetic anhydride.

The court perused the facts and argument’s presented, it thought that- “The instant case, looking into the allegations against the petitioner, the quantity of the substance recovered and also the fact that the petitioner is a foreigner and bail of the co-accused has been dismissed by this court vide order dated 24.11.2020, no ground for bail is made out, the bail application is, therefore, dismissed”.

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Judgment Reweied by: Mandira BS