Jullien Kanoui vs Narcotics Control Bureau
2008 Latest Caselaw 1220 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            Bail Appl.No.1139/2008

%                         Date of decision : 04.08.2008


Jullien Kanoui                                     ....... Petitioner
                             Through:   Mr.S.S.Das, Advocate.

                                    Versus

Narcotics Control Bureau                           ......... Respondent
                       Through :        Mr. Rajesh Manchanda, Advocate.


CORAM :-
* HON'BLE MR. JUSTICE ANIL KUMAR

       1.      Whether reporters of Local papers may          YES
               be allowed to see the judgment?
       2.      To be referred to the reporter or not?         NO
       3.      Whether the judgment should be reported        NO
               in the Digest?

ANIL KUMAR, J.

*

This is an application under Section 439 of the Criminal

Procedure Code by the petitioner, a French national seeking interim bail

for the period of at least six months on the ground that he is a case of

HIV Positive and for the special treatment he requires interim bail for

the said period.

The petitioner has also filed another petition being Bail

Application No.673/2008 for regular bail under Section 439 of the

Criminal Procedure Code.

The petitioner has contended that he is facing trial before Special

Court, NDPS in the case titled NCB Vs. Rakesh Kumar & Ors. According

to the petitioner on 31st January, 2007, NCB had recovered 870 grams

of charas from a Wagon-R bearing registration No.DL-9CA-5859 which

was under the possession of accused No.2, Sarvesh Bhatia. The officers

of NCB also recovered around 1210 kgs of hashish from a godown at

village Holambi Kalan, Delhi which was also under the exclusive

possession of Sarvesh Bhatia.

The petitioner has contended that Sarvesh Bhatia when first

examined on 31st January, 2007 did not state anything against the

petitioner. The petitioner contended that he was forcibly lifted by the

officers of NCB and he was tortured to give the statement.

The petitioner has contended that he was in the business of

export of furniture from India to Belgium and he was only sending the

furniture. He said that he has no knowledge about the concealment of

the drugs in the container which was not booked and reserved by him.

Nothing incriminating was concealed in any piece of the furniture.

The petitioner has asserted that the co-accused Sarvesh Bhatia

was tortured and induced by the officers of the NCB to implicate the

present petitioner. The petitioner has further contended that he was not

involved with the recovery of 1210 kgs of hashish from Belgium and in

respect of alleged recovery from containers neither the statement of

applicant implicate him nor the statement of co-accused Rakesh

implicates the petitioner.

The bill of lading for the container caught at Belgium was given

by Sarvesh Bhatia. The petitioner is neither a shipper nor the exporter

nor the receiver of the said bill. The container which was recovered at

Antwerp, Belgium was booked by Sarvesh Bhatia. The statement of

Mr.Virender Syal representative of David Cornet International also does

not implicate the petitioner. The respondent has not produced anything

to show the connection of the petitioner with the consignee of the

container, as owner or director or any other relationship except the

admission of the petitioner that he was appointed as an agent to

procure the furniture by the consignee of the bill of lading.

The container from which the drugs were recovered at India was

also booked by the accused Sarvesh Bhatia and not by the petitioner.

Sh.Rakesh, a co-accused in his statement dated 1st February, 2007 has

indicated that the container was unloaded a month ago as per

instruction of Sarvesh Bhatia and the container belonged to one L.D.

Three persons namely Sharmaji, Nafi Bhai and Dahul, all muslims

came to Delhi from Mumbai seven days prior to arrival of the container

and he had received them from the Railway Station and left them in the

godown at the instance of Sarvesh Bhatia and those three persons

remained in the godown and a week before 1st February, 2007 they left

for Mumbai. According to Rakesh Kumar, another co-accused, the said

three persons packed the charas and they concealed the packets in the

container. The co-accused Rakesh Kumar also stated that Sarvesh

Bhatia exports charas to foreign countries after smuggling it from

Nepal. Mr.L.D who alleged to have owned the container and Rakesh

Kumar has not named petitioner in any manner.

The petitioner has also contended that he was taken in custody

on the night of 31st January, 2007 when he was leaving India on the

intervening night of 31st January and 1st February, 2007. He was

picked up and kept in the custody till 3rd February, 2007 and then

shown to be arrested on 3rd February, 2007. Copies of the air tickets

and Visa are also produced by the petitioner in his application for bail

in support of his contentions.

By order dated 6th June, 2008, keeping in view the medical record

of the petitioner, the jail authorities were directed to shift the petitioner

to Ram Manohar Lohia hospital under the protective custody of the

police and the police men who had to accompany the petitioner were

directed to be in plain clothes and the French Embassy was allowed to

offer any medicine to the petitioner.

Pursuant to order dated 3rd July, 2008 in bail application

No.673/2008 Ram Manohar Lohia hospital was directed to give a report

about the condition of the petitioner especially about the ramification of

petitioner having very high HIV viral load. The hospital was also

directed to indicate the treatment administered to the petitioner and

whether the treatment available is adequate considering his condition

and his illness.

A report dated 12th July, 2008 was sent by the Deputy Director of

Dr.Ram Manohar Lohia hospital indicating that the viral loads indicates

that the HIV virus in the body of the petitioner is worse and it was

further opined that the petitioner is not responding to the treatment

and the viral load will start increasing and very high levels of viral load

shall be detrimental to the health of the petitioner and his condition

may deteriorate very fast which may become life threatening. The report

by Dr.Professor S.C.Sharma of the petitioner is as under:-

"Mr.Julian Kanoui (35 years, Male) is suffering from HIV infection and is under regular follow up in ART clinic in Dr.Ram Manohar Lohia Hospital, New Delhi, vide NRID No.29/08. He has been admitted in Dr.Ram Manohar Lohia Hospital in past for various problems. Now he is admitted in Ward No.VIII, bed No.15, vide CR No.24455 w.e.f 24/06/2008. He is having HIV infection in advanced stage and is on ART since 1996. When he attended Dr.Ram Manohar Lohia Hospital, he had failed to respond to first line ART regimen and was already on second line drugs like, lopinavir/retonavir, Fosemprenavir, Tenofavir. He failed to these second line drugs also and then was put on latest drug "Darunavir" which is not available in India and he is getting it from France through French embassy. These drugs are also not available in our National AIDS Control Programme. Inspite of these drugs he has clinical failure and virological failure and he is getting opportunistic infections like, herpes zoster, candidiasis infection and diarrhea. His viral load has increased substantially to about 1,97855 lacs copies per ml. Viral load indicates the amount of HIV virus in the patient's body, higher it is, worse it is. On ART treatment the viral load should become undetectable in the body. If the patient is not responding to treatment or is failing to the treatment, the viral load will start increasing and very high levels as in this patient are very detrimental to the health of the patients and he will deteriorate very fast and get various opportunistic infections again, which may be life threatening. Now this patient needs genotype testing for HIV virus to ascertain to which medicine the patient has failed and to which medicine he is going to respond. The facilities to this test are not available here. Moreover the medicines which he will require will not be available here when he has failed to latest drug like Darunavir. He has also chronic hepatitis C infection which makes the case very complicated for management, as to start its treatment we need to control HIV viral load.

It is apparent that the condition of the patient is deteriorating due to drug resistance and treatment failure. We don't have facilities to investigate and treat the extensive prior treatment experienced patients like Mr.Julian Kanoui."

The learned counsel for the petitioner in the circumstances

contend that the petitioner is entitled to be released on bail at least for

six months.

The learned counsel for the respondent has opposed the grant of

even interim bail on medical grounds on the ground that the recovery of

the drugs from accused No.2, Sarvesh Bhatia is 1210 kgs and he has

stated about the involvement of the petitioner that he used to arrange

the drug from neighboring countries and he used to clear the sample of

drugs. The learned counsel asserted that there is grave apprehension

that the petitioner may flee from the jurisdiction of this Court.

According to him the petitioner is a part of the drug syndicate

considering the substantial quantity of the drugs involved.

Ms.Aliance Tullon is present on behalf of French Embassy and

she has produced a letter dated 30th July, 2008 from Jérôme

Bonnafont, The Ambassador, indicating that the travel documents of

petitioner, Jullien Kanoui, shall not be issued for his travel to leave the

Country without the prior permission of the Court. The said letter is

taken on record.

In the facts and circumstances, the petitioner is entitled to be

released on interim bail on the medical grounds. Therefore, the

petitioner is released on interim bail for a period of four months from

the date of his release subject to his furnishing a personal bond of

Rs.1.00 lakh with one surety of the like amount to the satisfaction of

the trial Court. The petitioner shall surrender his passport, if not

already surrendered. The petitioner shall not leave this country without

the prior permission of the trial Court. However, for leaving the

jurisdiction of this court for travel within India for treatment or for any

other purpose relating to his illness, the petitioner shall intimate the

trial Court in advance. The petitioner shall appear before the trial Court

on the dates of hearing unless exempted by the trial Court. A copy of

this order be sent to the Embassy of France so that they may take note

of the fact that the petitioner has been admitted to bail on the terms

and conditions mentioned herein above and may comply with the

representations made by the Ambassador of the France in his letter

dated 30th July, 2008. With these directions, the petition is disposed of.

Dasti, under the signature of the Court Master.

August 04th , 2008. ANIL KUMAR, J.

'K/Dev'