Ms. Mathews Clare Georgina vs Narcotics Control Bureau
2003 Latest Caselaw 290 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Section 439 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) is for grant of bail to the petitioner in Crl. Complaint No. 59/2002 filed by Narcotics Control Bureau under Section 23 read with Section 28 of the NDPS Act (hereinafter referred to as "the Act"

only).

2. I have heard learned Counsel for the petitioner and learned Counsel for the respondent.

3. The case against the petitioner, briefly stated, is that on 10.1.2002 the petitioner booked a parcel with a Courier Sterling International which was addressed to one Mrs. Brooks of London U.K.. The Airway Bill was filled up by the petitioner herself. The Couriers entertained some suspicion and as such reported the matter to NCB. The officials of NCB checked the parcel and found that it was containing two bronze statues which could be opened from the bottom. On opening these statues were found containing Hashish weighing about 1125 gm. Under the advice of the NCB officials the Couriers started waiting for some inquiry in regard to this parcel. On 16.1.2002 an inquiry came regarding this parcel which was being made by one Mrs. Matterson from Goa. The Courier under the advice of NCB asked the person making inquiries to fill up the invoice form so that the parcel could be dispatched. Mrs. Matterson from Goa then sent a Fax number on which a specimen invoice was sent to her by the Courier. In the meanwhile the NCB officials had contacted their counter parts at Goa who managed to apprehend petitioner at the PCO Booth while she was receiving the faxed invoice. Her statement under Section 67 was recorded and thereafter she was arrested.

4. According to the petitioner she had booked the said parcel on the request of one Mrs. Matterson who had given her Rs. 2,000/- Along with postal charges for booking the parcel on the given address as Mrs. Matterson was leaving the country and had no time to book the parcel herself. According to the petitioner she did not know what was inside the parcel. She had come across Mrs. Matterson when she had earlier come to India and had become friendly to her. She admitted that she had made a call to the Courier Company from Goa and she was apprehended when she had come to collect the invoice which was sent by the Couriers through Fax. Her whole defense was that she did not know the contents of the parcel and as such she had nothing to do with the contraband found therein. She did not know the address of Mrs. Matterson.

5. Learned Counsel for the petitioner has vehemently argued that in the absence of anything with the prosecution to show that the petitioner had knowledge about the presence of contraband in the parcel in question it could not be said that she was in possession of contraband and as such there were good and sufficient grounds for lifting the bar created by Section 37 of the Act by holding that the petitioner was not guilty of the offence and in case released on bail she was not likely to commit an offence again. In support of his submissions he relies upon the jdugments Sanjay Dutt v. State through CBI and Abdul Rashid Ibrahim Mansuri v. State of Gujarat . Relying upon the case of Sanjay Dutt, learned Counsel for the petitioner argues that the possession means conscious possession with requisite mental element and not mere custody without the awareness of the nature of such possession. It is argued that there is nothing on record to show that the petitioner had any knowledge of the presence of contraband in the two statues allegedly booked by her. The judgment of Abdul Rashid Ibrahim Mansuri cited by learned Counsel for the petitioner does not support the plea of the petitioner inasmuch as the Apex Court had no in uncertain terms held that in terms of Section 35 of the Act the plea of absence of culpable mental state has to be established by an accused beyond reasonable doubt. Learned Counsel for the respondent-complainant on the other hand submits that in view of Section 35 of the Act the petitioner can be presumed to be having knowledge of contraband in the parcel in question. He also argues that the story put forward by the petitioner in her statement under Section 67 of the Act in regard to the absence of any knowledge about the presence of contraband in the parcel in question is a cock and bull story and cannot be accepted by the Court at this stage for lifting the bar created by Section 37 of the Act. He argues that the petitioner admits that she had booked this parcel and was making inquiries also under assumed name which clearly indicates that she had knowledge about the concealed contraband otherwise ordinarily a person would neither try to help some one who is not well known and thereafter would not use assumed names for booking the parcel or for making inquiries. It is submitted that Mrs. Brooks or Mrs. Matterson were non existent persons and the petitioner was putting up these names to escape/avoid her liability. It is also pointed out that in 1994 also the petitioner was convicted in U.K for the commission of an offence regarding possession of drugs.

6. After considering the submissions made by learned Counsel for the parties and going through the material on record, this Court is of the considered view that at this stage this Court cannot even prima facie hold that the contraband concealed in the parcel in question was not in the knowledge of the petitioner. The story put up by petitioner in her statement under Section 67 of the Act and before this Court does not appear to be genuine. Mrs. Brooks as well as Mrs. Matterson are not shown to be in existence and as such it appears that the petitioner herself was indulging in the export of narcotics under assumed names. This conduct of petitioner was more consistent with her guilt and less consistent with her plea of ignorance about the presence of contraband in the parcel. If Mrs. Matterson had been in existence she herself would have made inquiries from the petitioner or contacted the Courier for making inquiries.The petitioner would not have undertaken the risk of booking the parcel and then making inquiries after filling up airway bill as well as invoice under assumed names. The judgments relied upon by learned Counsel for the petitioner do not advance the petitioners plea in regard to the absence of knowledge about the presence of contraband in the parcel in question. Section 35 of the Act makes it obligatory for the Court to raise a presumption of knowledge against her. It would be a question to be determined during the trial only as to whether the petitioner had or not knowledge about the presence of the contraband in the parcel. The burden will be on the petitioner to establish before the Trial Court that she had no knowledge about the presence of the contraband in the statues.

7. Considering the large quantity of the contraband and the conduct of the petitioner in the matter of its possession and export, this Court is of the considered view that no grounds are made out for the enlargement of the petitioner on bail. Section 37 of the Act stands in her way. It cannot be held that the petitioner is not guilty of the offence or in case she is released on bail, she would not commit such an offence again. The application, therefore, stands dismissed.

8. However considering the fact that the petitioner is a foreign national, the Trial Court is directed to expedite the trial to the extent possible.