Directorate Of Revenue ... vs Tehal Singh And Ors.
2005 Latest Caselaw 1294 Del

JUDGMENT

S.K. Agarwal, J.

1. By this petition under Section 482 of the Code of Criminal Procedure (for short, 'the Code') petitioner is seeking to recall the order dated 27.3.2002 passed by the Court of Special Judge, Delhi ordering respondents' release on bail on their furnishing a person bond in the sum of Rs. 2,00,000/- each with two sureties each of the like amount, in the case under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the Act'). The matter has been pending for service on the respondents since 3.4.2002. On the last date of hearing, summons were not issued for want of process fee. In the facts of this case, service on the respondents is waived. I have heard learned Counsel for the petitioner and have been taken through the record.

2. Prosecution allegations, briefly, are as follows: On the intervening night of 4th and 5th October, 2001, a car No. HR-01-F-8143 was intercepted at the petrol pump at Bhajanpura, Delhi. On search of the car, 9.066 kgs. of heroin was recovered and the persons traveling in the car were arrested. One set of nine samples was sent to CRCL for testing. It was opined that it contained diacety lmorphine. For determining percentage purity of the heroin, Gas Chromatog-raphy test could not be carried as the instrument was out of order. On 24.12.2001, remnant samples were again sent for testing the purity percentage. According to the CRCL report, percentage of diacetylmorphine in each of the remnant sample was as follows:

 .81%     .56%      .25%
1.37%    .36%      1.03%
.31%     .48% and   .37%
 

3. On the basis of the above report, accused (respondents) moved an application under Section 167(2) of Cr.P.C. pleading that as per the purity percentage report of the CRCL, the total quantity of 9.066 kgs. of powder, recovered from the possession of accused persons would come out to about 51 gms. of diacetylmorphine, which is much less than the commercial quantity, as per the notification dated 19.10.2001. The investigations should have been filed within 60 days from the date of arrest, but the same was not done, therefore, they were entitled to be released on bail under Section 167(2) of the Code. Learned Trial Court found that, applying purity percentage test, the quantity of the drug allegedly recovered from the respondents would stand substantially reduced. In any case, it would be ceased to be the commercial quantity. By a detailed order dated 27.3.2002, accused were ordered to be released on bail in view of the provisions contained in Section 36(4) of the NDPS Act read with Section 167(2) of Cr.P.C. This order is under challenge.

4. It is not in dispute that the matter is pending trial; the accused (respondents) are attending the Court on each and every date of hearing and prosecution evidence is in progress. learned Counsel for the petitioner argued that one of the respondents was earlier involved in the case under NDPS Act and he could not be released on bail, as there is an embargo under Section 37 of the NDPS Act. learned Counsel also argued that the test was not properly conducted by CRCL and the same could not be relied upon and petitioner has moved an application for sending the samples to CRCL again for further analysis and till the further report is received, accused (respondents) should remain in custody.

5. There is no merit in the above contention, even when the accused is released on bail, he continues to be in the constructive custody of the Court through his surety. He has to appear in the Court whenever required or directed. To that extent, his liberty is restricted and can always be directed to be taken into custody whenever the circumstances warrant. It is difficult to understand as to why the petitioners have failed to effect service for 3.4.2002. It is not the petitioner's case that accused are not attending the trial or they are in any way tampering with the prosecution evidence or that they are likely to abscond. The matter is still pending trial, therefore, evaluation of the material to grant bail is avoided. It is enough to say that facts and circumstances noted above do not warrant cancellation of bail at this stage. For the foregoing reasons, I do not find any merit in the petition and the same is hereby dismissed.