Tomar Asulin vs Customs
2005 Latest Caselaw 1172 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner, facing trial under sections 20/21/23/29 of NDPS Act 1985 seeks bail on the ground that he is in judicial custody since 2.4.2003 and that there is no evidence against him.

2. On 2.4.2003, Bret Leonard Makinson, a British National and Ms. Monika Barbara Wernli, a Swiss national were intercepted at the security hall of IGI Airport after custom clearance. From a bag identified by Bret as belonging to him, key whereof was provided by Monika, commercial quantity of hashish and heroin were recovered.

3. In her statement dated 2.4.2003 recorded under Section 67 of NDPS Act 1985, Monika stated that she and Bret had been visiting various countries and that the bag from which the offending material was recovered was borrowed by Bret from a friend. In his statement of even date recorded under section 67 of NDPS Act 1985, Bret stated that he borrowed the bag from one Essy Gruboum and the petitioner who are Israeli Nationals. He however said that he knew nothing as to how the heroin and hashish came inside the bag.

4. On 2.4.2003 room of the petitioner at Hotel Vishesh Continental, 7A/12, WEA, Karol Bagh was searched. Nothing incriminating was recovered.

5. Investigation revealed that telephone calls were made from the hotel where Bret and Monika were staying at the hotel where petitioner was staying. Investigation also revealed that petitioner and Bret as also Monika had been meeting each other. Further investigation revealed that petitioner, through mobile No.9811128216, had remained in contact with Bret and Monika.

6. At the trial, on 2.8.2004, Bret admitted his guilt. He stated that he was solely responsible for the crime and that no one else was involved. The court accepted the plea of guilt and convicted him under Section 20, 21, 23 and 29 of NDPS Act, 1985.

7. Monika stands admitted to bail vide order dated 23.5.2005 in Bail Application No. 360/2005.

8. While admitting Monika to bail, B.D. Ahmed J. observed as under:-

4. Mr Tiku who appears for the petitioner submitted that although no recovery was made from the present petitioner, since Section 29 of the NDPS Act has also been pressed into service by the prosecution, even if it is admitted that Section 37 of the NDPS Act comes into play, there are reasonable grounds for believing that the offence was not made out against the present petitioner. He submitted that the most important circumstance was the plea of guilt by the co-accused who pleaded guilty alone. He further submitted that there is no antecedent history of the present petitioner in connection with NDPS related offences. In fact, he submits that there are no criminal antecedents of the present petitioner. He also submits that the Court may impose any condition to ensure that the petitioner does not leave the country during the period of her trial.

5. The Supreme Court in a recent judgment in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another: 2005 AIR SCW 2215 had occasion to consider Section 21(4) of the Maharashtra Control of organized Crime Act, 1999. That provision is in pari materia with the provisions of Section 37 of the NDPS Act and, in connection therewith, the Supreme Court observed as under:-

"45. The Act is deterrent in nature. It provides for deterrent punishment. It envisages three to ten years of imprisonment and may extend to life imprisonment. Death penalty can also be imposed if somebody commits a murder. Similarly fines ranging between three to ten lakhs can be imposed.

46. Presumption of innocence is a human right (See Narendra Singh and another v. State of M.P., ] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of adperson should not ordinarily be interfered with unless there exist cogent grounds therefore. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of sub-section (4) of Section 21 must be given a proper meaning.

47. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?

48. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose.

49. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite means rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of lawhat some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision."

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"55. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence

56. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as tohy the applicant has been granted or denied the privilege of bail.

57. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced the trial, without in any manner being prejudiced thereby."

Considering the observations of the Supreme Court, if the Court is satisfied that in all probability the accused ultimately may not be convicted, an order granting bail may be passed. It is further observed by the Supreme Court that the satisfaction of the Court as regards the likelihood of not committing an offence while on bail must be construed to mean an offence under the Act (here, the NDPS Act) and not any offence whatsoever be it a minor or major offence.

6. Considering these factors and noting the fact that the co-accused has pleaded guilty and taking upon the entire blame, there are reasonable grounds for believing that the petitioner is not guilty of the offence. There is also nothing to show that there is a likelihood of the petitioner committing such an offence while on bail. There are no criminal antecedents of the present petitioner. Therefore, in my view, the mandatory provisions of Section 37 of the NDPS Act for the grant of bail, have been satisfied."

9. Opposing the bail, Shri Ashish Aggarwal Advocate urged that ground of parity is not a compelling reason to grant bail. Counsel relied upon 2000 Crl.L.J. 4497 Mumtaj v. State of U.P. Relying upon 2000 Crl.L.J. 3526 U.O.I. v. Aharwa Deen, counsel urged that in the teeth of Section 37 NDPS Act 1985, petitioner is not entitled to bail for the reason, the bag for which the contraband material was recovered belonged to the petitioner and that there was evidence to show that the petitioner had remained touch with Bret and Monika. Counsel also relied upon N.C.B. v. Kishan Lal.

10. Mr. K.K. Sud, learned senior counsel for the petitioner relied upon Vikramjit Singh v. St. of M.P. and Harjeet Singh v. State of Punjab to urge that a coordinate bench could not upset the finding of a co-ordinate bench. Counsel also relied upon Preethi Srinath v. Selection Committee, Ayyaswamji Gounder v. Munnuswamy Gounder and 2004 (III) A.D.(Delhi) 131 UOI v. P.D. Sharma to argue that precedent demanded that a single judge was bond to follow a decision of another single judge.

11. Grant or rejection of bail in an interim measure pending trial. Each case depends on its facts. I therefore see no scope for the applicability of the rule of 'Precedent'. Precedents apply when questions of law are decided by a court and decision is cited at a subsequent trial between different parties. Decisions of the Supreme Court in Vikramjit Singh's case and Harjeet Singh's case are distinguishable. The former was a case where cancellation of the bail was sought on basis of observations made in the case of co accused. The latter case involved application for cancellation of bail being taken up by a judge other than the one who granted the bail. The decisions of the Hon'ble Supreme court are to be read in the factual context of the 2 decisions.

12. However, I may add that judicial discipline has to be maintained by courts both in the interest of administration of justice as also to maintain public faith in the judiciary. In the context of bail, it would mean that a decision of a coordinate bench granting bail to a coaccused has not only to be noted but if final, must be given due weightage.

13. My learned brother, B.D. Ahmed J. has noted the impact of plea of guilt by Bret. He has noted the bar of section 37 NDPS Act 1985. It has been held that chances of conviction of Monika are remote. She has been held entitled to bail.

14. Role of Monika is more proximate with the recovery. She was traveling and staying with Bret. She was apprehended in company of Bret. Key of the bag in which contraband was found was with her. Qua petitioner, there is no recovery. Neither Monikanor Bret has named him as the supplier of the contraband material. Only material against him is that he gave the bag to Bret. (In an empty condition). That he and Bret as also Monika spoke to each other over the telephone as also personally. However, there is no record of what they spoke. Vis-à-vis Monica, petitioner has a much better cases for grant of bail.

15. For the reason which weighed with B.D. Ahmed J. while granted bail to Monika, I am of the opinion that petitioner stands on a better footing. He too is entitled to his liberty.

16. Petition allowed. On petitioner furnishing a personal bond of Rs.1 lac with one surety in the like amount to the satisfaction of the trial court, petitioner is directed to be admitted to bail. Petitioner shall surrender his passport if not alreadywith the state. Before admitting him to bail, learned trial court would obtain a writing from the Embassy of Israel that petitioner would not be issued a duplicate passport.

17. LCR be returned forthwith.