* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3014/2011 & Crl. M.A. No. 10629/2011
% Judgment reserved on :13th September, 2011
Judgment delivered on: 16th September, 2011
DRI ..... Petitioner
Through : Mr.Satish Aggarwala and
Mr.Sushil Kaushik, Advs.
versus
EMMANUEL CHILKEZIE ..... Respondent
Through : Mr.Rahul Tyagi and Mr.V.V.P.
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
SURESH KAIT, J.
1. Vide this petition, the petitioner has assailed the order dated 03.09.2011 passed by the learned ASJ/Spl. Judge, NDPS, South & South East District, Saket Court Complex, New Delhi, whereby has admitted the respondent on bail.
2. Ld. counsel for the petitioner submits, the respondent/accused Emmanuel Chilkezie is facing trial for Crl.M.C.3014/2011 Page 1 of 7 commission of the offence punishable under Section 29 of the NDPS Act r/w Section 23 of the NDPS Act with regard to being part of a criminal conspiracy to deal in and export out of India a commercial quantity of heroin weighing 1.987 kg.
3. It is pertinent to mention here that the respondent has moved bail application long back, however, it is taken up for disposal only after the other co-accused, namely, Bitoren Dolores Fernandez was granted bail vide order dated 24.08.2011 by the trial court.
4. The trial court has recorded in the impugned order that the recovery of the above heroin or any other contraband substance was not effected from the respondent and he is only being alleged to be part of a criminal conspiracy to deal in the contraband substances and to export the above quantity of heroin.
5. Vide order dated 24.08.2011, the trial court has already directed the release of the afore-mentioned co-accused on bail, subject to certain conditions, as there was observed to be a huge difference in the percentage of diacetylmorphine present in two contraband substance and tested in the CRCL. Crl.M.C.3014/2011 Page 2 of 7 While the percentage of diacetylmorphine in the sample taken up of the above substance at the time of its seizure was reported to be 86%, but in the second sample drawn out of the remaining substance in the trial court, on an application for redrawing of a fresh sample and testing thereof moved by the above-mentioned co-accused, the percentage of diacetylmorphine was reported to be only 41.3%. The trial court while relying on the propositions of law as laid down in the cases of Sartori Livio vs. State(Delhi Admn.) 2005 Drugs Cases (Narcotics) 443, Starkl Ferdinand vs. State (Customs) 2005 Drugs Cases (Narcotics) 571 and the orders passed by this Court dated 09.04.2009 in Crl. M.C. No.436/2009 and Crl. M.A. No.1640/2009 titled NCB vs. Maroof Bakare and dated 15.09.2010 in Crl. M.C. No.2467/2010 by this Court, the afore-mentioned co-accused was directed to be released on bail as in view of the above judgments as there were serious doubts regarding the nature of the contraband substance recovered from the above-mentioned co-accused and the substance taken as sample therefrom and hence in the light of the above prepositions there were reasonable grounds for Crl.M.C.3014/2011 Page 3 of 7 believing that the above co-accused was not guilty of such offence and was not likely to commit any offence while on bail.
6. Keeping in view the above facts and circumstances and on the ground of parity, the respondent has been released on bail on the same terms and conditions as were imposed on the co-accused, namely, Bitoren Dolores Fernandez.
7. This matter was heard on 13.09.2011 and reserved for judgment. In the meanwhile, the DRI has filed Crl. M.C. No.3076/2011 whereby they challenged the order passed by ld. trial judge dated 08.09.2011, whereby the ld. trial judge, on application filed by the petitioner, the matter was fixed for date already fixed on 14.10.2011.
8. In the aforesaid Crl. M.C. No.3076/2011, which was taken up on 14.09.011, the petitioner has drawn the attention of this Court to the Arrest Memo, which is as under:-
"Consequent to the recovery and seizure of 1.985 kgs heroin from a blue colour zipper suitcase of American Tourister brand which was recovered from the dickey of the Silver colour Crl.M.C.3014/2011 Page 4 of 7 Tata Indica car bearing registration No.DL-
3CAX-4435 in which Francis L. Hmar @ Muhammad Rashid, and Sukleswar Basumatary were travelling, carrying and transporting the above said recovered and seized drugs on 02/03.06.2008 and on the basis of statement dated 03.06.2008 of Francis L. Hmar @ Muhammad Rashid tendered under Section 67 of the NDPS ACT, 1985, wherein he admitted the recovery of seized 1.985 kgs heroin from his possession supplied by Emmanuel and statement dated 23.12.2008 of Emmanuel Chilkezie R/o Flat No.T-304, Hill View Apartment, Mehrauli, New Delhi, permanent resident of House No.105, Umuaka Imo State, Nigeria tendered under Section 67 of the NDPS Act, 1985, wherein he admitted supply of said drugs to Francis L. Hmar @ Muhammad Rashid and the investigation conducted so far, it has transpired that Emmanuel Chilkezie was knowingly and willingly concerned in trafficking of the said heroin and thus, committed offences punishable under Section 21, 23 and 29 of the NDPS Act, 1985. I, therefore, place Emmanuel Chilkezie under arrest in exercise of powers under Section 42 of the Act, ibid at......................................."Crl.M.C.3014/2011 Page 5 of 7
9. Accordingly, on their submissions, I set aside the order dated 08.09.2011 passed by ld. trial judge and directed to hear this matter on 16.09.2011 and decide as per law. It is pertinent to mention here that in Crl. M.C. No.2970/2011 the same challenge was there and vide order dated 16.09.2011, the above-said Crl. M.C. has been dismissed after recording reasons therein.
10. Though, I find no discrepancy in the order passed by the learned Special Judge. This matter was heard on 13.09.2011 and reserved for judgment. However, before dictating the order in the instant petition, very next day, i.e., 14.09.2011, the petitioner brought to my notice that the respondent is also involved in some other case punishable under Section 21, 23 and 29 of the NDPS Act, therefore, this case has no parity with the case of the co-accused because of the changed circumstances.
11. Since the petitioner is involved in other case, as mentioned above, and the petitioner - DRI is going to serve arrest warrants, therefore, I set aside the order dated 03.09.2011 passed by the ld. Special Judge. Crl.M.C.3014/2011 Page 6 of 7
12. Accordingly, Criminal M.C. 3014/2011 is allowed.
13. No order as to costs.
14. Criminal M.A.No.10629/2011 is hereby dismissed as infructuous.
SURESH KAIT, J September 16, 2011 RS Crl.M.C.3014/2011 Page 7 of 7