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22 Sep

Delhi High Court Denies Relief to Nigerian National in NDPS Case

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Case Title: Kenechukwu Joseph v. The State

Date of Decision: September 21, 2023

Case Number: BAIL APPLN. 352/2023

Coram: Hon’ble Mr. Justice Dinesh Kumar Sharma

Introduction

This case revolves around a bail application filed by Kenechukwu Joseph under Section 439 of the Code of Criminal Procedure (Cr.P.C.). The petitioner seeks bail in a case registered under Section 21(c) of the NDPS Act (Narcotic Drugs and Psychotropic Substances Act) and Section 14 of the Foreigners Act. The petitioner alleges that he was falsely implicated in a drug-related case and has been in custody since January 16, 2020.

Factual Background

On January 16, 2020, the special staff office received a secret tip-off regarding the transportation of narcotics substances. Acting on this information, a team was formed, and a trap was set near Hotel Radisson Blu, Paschim Vihar, Delhi. The petitioner, Kenechukwu Joseph, a Nigerian national residing in Delhi, was apprehended. During a search, a poly bag containing 140 grams of cocaine was found in his possession. Two samples of 5 grams each were extracted, and the remaining 130 grams were seized. Subsequently, the case was registered under the NDPS Act, and the investigation commenced.

Legal Issue

The primary legal issue in this case revolves around the petitioner’s eligibility for bail under Section 37 of the NDPS Act, which pertains to offenses being cognizable and non-bailable.

Contentions

The petitioner’s counsel argued that the petitioner was falsely implicated, citing discrepancies in the arrest location and contradictions in the prosecution’s version of events. They also raised concerns about tampering with the narcotics samples and the sealing of evidence. The petitioner had been in custody for over three years, and only a fraction of the witnesses had been examined, making a lengthy trial likely.

The state’s counsel opposed the bail application, asserting that the petitioner was found in possession of a commercial quantity of cocaine. They also highlighted the petitioner’s non-resident status and lack of a permanent address in India, raising concerns about potential absconding.

Observation and Analysis

The court observed that Section 37 of the NDPS Act imposes strict conditions for granting bail in cases involving commercial quantities of narcotics. It requires a court to be satisfied that the accused is not guilty and is unlikely to commit further offenses while on bail.

The court cited precedents indicating that procedural lapses, such as issues with sampling and sealing of evidence, should be assessed during trial, not during bail hearings. Non-compliance with these procedures may affect the probative value of evidence but does not automatically vitiate the trial.

Decision and Conclusion

The court concluded that the petitioner was not entitled to bail at this stage. The issues related to sampling, contradictions, and tampering should be examined during the trial. Given the seriousness of the charges and the quantity of narcotics involved, the court found no grounds to grant bail to the petitioner. Thus, the bail application was dismissed.

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Written by – Ananya Chaudhary

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6 Sep

The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, on the grounds of prolonged incarceration and blatant violation of his Article 21 right.

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The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, on the grounds of prolonged incarceration and blatant violation of his Article 21 right.

Title: Raju Lama v. State

Decided on: July 17, 2023

Citation: 2023 SCC OnLine Bom 1424

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, found in possession of drugs, owing to prolonged incarceration and violation of his Article 21 right.

Facts of the Case

This case is an application for bail for the offences punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The applicant was arrested on 29.11.2020. At the time of arrest, it is alleged that the raiding party seized 2.5 kgs of charas which was in the dikky of a scooter parked by the applicant. The applicant is in custody for more than two years and nine months. The prosecution has cited sixteen witnesses and proposes to examine nine more witnesses. The applicant is requesting for a bail from Court.

Court Analysis and Judgement:

The counsel for the applicant submitted that the last date when the third witness was examined was on 23.03.2023 and since then there is no progress in the trial. The trial is likely to take some time to conclude. Supreme Court case Rabi Prakash v. State Of Odisha was cited to contend that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(i)(b)(ii) of the NDPS Act. The Court held that the applicant is entitled for bail on the ground of prolonged incarceration and because there are no criminal antecedents reported against the applicant. Also, the Court held that the likelihood of the applicant committing an offence of a similar nature is highly improbable. The Court therefore granted the applicant bail as he is a resident of Himachal Pradesh. He was released on bail upon furnishing a bond worth rupee 1,00,000.

Written by- Reema Nayak

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27 Jul

Delhi High Court released the petitioner on bail in the case under NDPS act and held that trial is likely to take time, thus cannot be kept in prison for long.

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Title: ANITA @ KALLO versus THE STATE (NCT OF DELHI)

Date of decision: 18th July, 2023

+ BAIL APPLN. 957/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

Delhi High Court released the petitioner on bail in the case under NDPS act and held that trial is likely to take time, thus cannot be kept in prison for long. It also took note that quantity seized from co-accused cannot be clubbed with the petitioner thus rigours of section 37 of NDPS Act would not apply.

Facts of the case

The petitioner is requesting regular bail in FIR No. 256/2022, filed at Police Station Crime Branch in Delhi, under Sections 21/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The petitioner’s attorney claims that the disclosure statement of co-accused Shahban was the reason for the petitioner’s detention at the age of roughly 37. It is also claimed that the petitioner’s person contained just 89 grammes of heroin.

Even though the Forensic Science Laboratory (FSL) Report is still pending, the chargesheet has already been submitted.

Analysis of the court

In the current instance, 89 grammes of heroin were recovered from the petitioner, which is an intermediate rather than a commercial quantity. The recovery from the petitioner cannot be combined with the recovery from the co-accused, according to the ruling in Anita v. State (NCT of Delhi). As a result, in my opinion, the facts and circumstances of the current case do not meet the requirements of Section 37 of the NDPS Act.

The petitioners cannot be detained for an endless amount of time in light of the aforementioned reasons and the likelihood that the trial would drag out. As a result, the court finds it appropriate to give the petitioners bail.

the petition is granted, and the petitioner is instructed to be freed upon submitting a personal bond for Rs. 50,000 along with one surety for the same value, subject to the pleasure of the Trial Court.

Written By Shreyanshu Gupta

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20 Jul

Patna High Court directed the District Court to release the car in favour of the petitioner after verifying the registration of the car

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TITLE: Sukh Sagar Kumar v. The State of Bihar & Ors.

Decided on: 20-07-2023

Cr.WJC No: 1491/2022

Coram: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

Facts of the case:

The order dated 06.09.2022, issued in NDPS Case No. 30/2021 by the learned 1st Additional Sessions Judge, Begusarai, has been challenged in the current writ application.

The petitioner’s car, with registration number BR 09 AJ/0706, was parked outside the home of the accused identified in the FIR when a search was conducted, and 385 gms. of brown sugar were found inside the vehicle. These are the key facts that gave rise to the current writ application. It has been claimed that the car in question was used by the accused individuals listed in the FIR to carry illegal substances, and brown sugar has also been found inside. As a non-FIR named accused, the petitioner has been added.

Learned Counsel for the petitioner claims that the vehicle that was seized and whose registration number is BR 09 AJ/0706 belongs to the petitioner. He was unaware that brown sugar was kept in the vehicle. He further states that the petitioner is not named in the First Information Report and that the police actually seized his car on December 2, 2021, as would be clear from the GPS data, but that the police only revealed the actual seizure on December 3, 2021, after the First Information Report was filed against other accused parties. The petitioner has attached the registration certificate as proof of ownership. He additionally submits that the confiscation action has not yet begun and that it cannot begin until the trial is over in accordance with Section 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He also asserts that because the car in question is stored in the police station’s open area, it is constantly deteriorating and losing its ability to go on public roads.

On the other hand, the State’s learned counsel opposes the petitioner’s request to have the car released in his favour while the trial and/or confiscation proceedings were ongoing, arguing that the petitioner knew the car was being used to transport a prohibited substance and that it was parked in front of the accused people’s home. Furthermore, he claims that the in question car has been found to contain a commercial amount of brown sugar.

Analysis of the court and decision:

The court has heard counsel for petitioner and learned Additional Public Prosecutor for the State.Reviewing Section 60 of the 1985 Narcotic Drugs and Psychotropic Substances Act, it appears that any conveyance used to transport such substances is subject to confiscation if it can be demonstrated that the owner of the vehicle or conveyance knew about or approved of its use. There cannot be any confiscation in the initial instance without any such material.

Sections 451 and 457 of the Code of Criminal Procedure, 1973, which deal with the court’s authority to order the disposal or custody of the property pending trial in certain cases and the procedure by the police upon seizure of the property, would apply to the question of the car’s release in light of the aforementioned facts.

Accordingly, the order dated 06.09.2022, passed by the learned 1st Additional Sessions Judge, Begusarai, in NDPS Case No. 30/2021, arising out of Sahebpur Kamal Police Station Case No. 288 of 2021, is set aside and the learned District Court is directed to release the car, in question, in favour of the petitioner after verifying the ownership/registration of the car within a period of four weeks from the date of receipt/production of a copy of this order, subject to the following conditions:-

(1) That the petitioner shall furnish bank guarantee of Rs. 3 Lacs to the satisfaction of the learned District Court;

(2) That before handing over the car to the petitioner, a detailed and proper Punchnama of the said car, after taking its photograph, shall be prepared;

(3) That the petitioner shall also execute bond that the car, in question, shall be produced as and when required at the time of trial or confiscation proceeding; and

(4) That petitioner shall also furnish an undertaking on oath that he shall not alienate or part with the ownership of the car, in question, till pendency of the trial or confiscation proceeding, if any.

With the aforesaid directions and observations, this application is allowed.

There shall be no order as to costs.

Written by- Meghana D

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18 Jul

Accused acquitted under section 22(c) of the NDPS Act by Punjab high court

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TITLE: Gurjinder Singh v State of Punjab

Decided On-:01.6.2023

CRA-S-2808-2019 (O&M)

CORAM: Hon’ble Justice Mr. Sandeep Moudgil

INTRODUCTION- The trial judge in question, a learned trial judge who presided over the case under Section 22(c) of the NDPS Act, then proceeded to record a finding of guilt against the defendant. The accused convict has made the decision to file the current criminal appeal before this Court because he is dissatisfied with the above-drawn verdict of conviction as well as the subsequent sentences of imprisonment and fine that the learned convicting Court concerned imposed upon him.

FACTS OF THE CASE-

According to the case’s facts, Along with other law enforcement officers, ASI Nirmal Singh, who was assigned to PS Balachaur in the District of SBS Nagar, was out on patrol to check for dishonest characters travelling from Majaari to the direction of Mehndpur. When the police party arrived close to the Village Mehndpur cremation ground, they saw four people exiting a tube well in Jarnail Singh’s fields. They became terrified at the sight of the police party and tried to flee. They were also being pursued by the police, who caught one of them after he had collapsed in some fields. The person who was caught threw a polythene bag into the fields from his pocket. The bag in question was torn when it was picked up by the investigating officer. The aforementioned bag included four Dispovan-branded syringes, three injections, and intoxicating powder.

He identified himself and his address as Gurjinder Singh @ Ginda when questioned. He then weighed the potent polythene bag that Gurjinder Singh had thrown into the fields and that he had picked up; the weight of the bag was 372 gms. Three injections and four syringes were also placed in another parcel along with the aforementioned intoxicating powder. He sealed both packages with his seal, which had the impression “NS.” The suspect was taken into custody and thoroughly searched. The formal FIR was registered based on the rule that the investigating officer had prepared.

COURT ANALYSIS AND DECISION

As a result, he went on to file a charge against the defendant for a violation of Section 22(c) of the NDPS Act. The accused was presented with the previously stated charge; he pleaded not guilty and demanded a trial. The prosecution used five witnesses to support its case, and the learned public prosecutor in question then concluded the prosecution’s evidence. However, the prosecution has been able to present convincing evidence that the seizure was recovered, carried out at the crime scene, and then sealed with the appropriate seal impressions. However, reading the FSL report (supra) also reveals that the sealed cloth parcels were received there, keeping the seal impressions on them intact.It would seem that the material was placed in loose cloth parcels after being examined by the concerned chemical examiner, and that these loose cloth parcels were then sent to the person in charge of the malkhana in an unsealed condition.

“The result of the above discussion, is that, this Court finds merit in the appeal, and, is constrained to allow it. Consequently, the appeal is allowed. The impugned judgment convicting, and, sentencing the appellant, and, as become recorded by the learned trial Judge concerned, is quashed, and, set aside. The appellant is acquitted of the charge framed against him.”

Written by- Steffi Desousa

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