Trilok Singh vs Narcotics Control Bureau
2008 Latest Caselaw 1668 Del

                  Reportable
*     HIGH COURT OF DELHI AT NEW DELHI

+            BAIL APPL. NO. 1703/2008

                                Date of decision : 17.09.2008

#     TRILOKI SINGH                      ...... Petitioner
!                   Through : Mr. A.P. Mohanty, Adv.
                              Mr. C.M. Thopliyal, Adv.
                              Mr. S.P. Paul, Adv.


                             Versus


$     NARCOTICS CONTROL BUREAU             ......Respondent
^                   Through : Mr. B.S. Arora, SPP

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?              Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                     Yes

                          JUDGMENT

ARUNA SURESH, J. (Oral)

1. On receipt of secret information that three persons

namely Ashok Kumar Jaiswal, Ajay Pratap Singh

and Triloki Singh would come to Suraj Kund,

Tuglakhabad Road to deliver a huge consignment

of charas to traffickers, Superintendent, NCB,

DZU, New Delhi deputed the complainant to lay a

trap near the said place on 22.6.2008. A trap was

laid and at about 2.00 p.m. on that day a black

Scorpio Car bearing No. UP-31K-4455 was

intercepted and was stopped at the gate of

Dr.Karan Singh Shooting range, Surajkund Road,

and it was found driven by the present applicant

Triloki Singh and other co accused persons were

found sitting on the rear seat. After completing

the formalities, and after giving notices and

showing search warrants, the raiding party

conducted personal search of the accused persons

and the vehicle was also searched. On search of

the vehicle nine white plastic bags were recovered

and when checked, the said bags were found to

contain black coloured solid substance duly tied

with brown/yellow tape. On field kit test, the

substance was found to be charas. The entire

recovered material weighed 246 Kgs.

2. The Investigating Officer also recorded voluntary

statement of the accused persons under Section 67

of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to "NDPS Act") and

all the three persons were arrested for offences

under Section 20 and 25 of the NDPS Act.

Petitioner is in judicial custody since his date of

arrest.

3. Mr. A.P. Mohanty, Learned counsel for the

petitioner, has urged that petitioner was only the

driver of the vehicle and had no knowledge of the

substance lying in the recovered bags and

therefore, it cannot be said that he was involved in

the trafficking of the contraband drug along with

other accused persons. Learned counsel for the

petitioner further submitted that after seizure of

the material it was not sent for its anaylysis within

72 hours of the recovery which is mandatory

requirement of law and the samples were sent only

on 26.6.2006 after about five days of the recovery.

4. Learned counsel B.S. Arora, SPP, appearing for the

respondent while controverting the submissions of

the learned counsel for the petitioner argued that

petitioner was arrested by the NCB officer along

with a huge quantity of charas weighing 246 kgs, a

contraband of commercial quantity and therefore,

since the contraband was recovered from the

vehicle driven by the accused a presumption under

Section 35 and 54 of the NDPS Act would arise

against the petitioner and it being a commercial

quantity, provisions of Section 37 of the NDPS Act

would apply. Hence, petitioner is not entitled to

bail as prayed and if released on bail there is every

likelihood of his tampering with the evidence as the

case is now pending trial.

5. First application filed by the petitioner before the

learned Special Judge was dismissed on

17.11.2006. Another application filed by the

petitioner seeking his release on bail was again

dismissed by the learned Additional Sessions Judge

on 21.2.2008. Petitioner was found driving a

Scorpio Car from which 246 kgs charas was

recovered and the petitioner was arrested on the

spot. Whether petitioner had the knowledge of his

carrying contraband in the vehicle or not is a

question which has to be decided by the court after

the trial of the case is complete. More so it is the

defence of the petitioner that he had no knowledge

of the contraband being carried in the vehicle

driven by him by the other two accused persons.

The petitioner is involved in a serious offence

affecting the attitude and social fabric of the

society. In Babua v. State of Orrisa - (2001) 2

SCC 566, the Supreme Court observed:

"3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to

be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view."

6. Hence, at this stage petitioner cannot be allowed to

be released on bail only on the basis of his defence

that he had no knowledge of the contraband which

was recovered from his vehicle.

7. As regards sending the sample for chemical

analysis to CRCL after five days in contravention of

the mandatory provisions of law is again a question

to be assessed by the court during the trial of the

case. This cannot under any circumstance be made

a ground for grant of bail to the petitioner at this

stage, specially when charges have been framed

and prosecution evidence is being recorded.

Learned counsel for the petitioner has relied upon

State of Gujarat v. Ismail U Haji Patel and Anr.

- (2003) 12 SCC 291 to support his submission

that since the sample was not sent for chemical

analysis within 72 hours petitioner should be

released. However, the said judgment has no

bearing on the facts and circumstances of this

case. In the said case it was an appeal filed by the

government against the acquittal of the accused

persons for offences under Section 22 read with

Section 29 of the NDPS Act. The Supreme Court

observed while upholding the acquittal that since

there was nothing on record to show that the

seized articles were in proper custody, in proper

form and the samples were sent to the chemical

analyst relating to the seized articles under proper

orders of the Magistrate and therefore the

acquittal under Section 55, since proceedings were

vitiated was correct. The said judgment, therefore,

related to faulty proceedings which were

discovered during the course of the trial resulting

into acquittal of the accused persons in the said

case.

8. Therefore, any alleged faulty procedure adopted by

the prosecution during the investigation of the case

cannot be allowed to be raised at this stage for

seeking bail. Any reflection on the procedure

adopted by the investigating agency while

considering the bail application would be highly

prejudicial to the interest of the parties. Whether

provisions of Section 53 and 55 of the NDPS Act

were complied with in the present case is to be

decided by the trial court at the relevant stage of

the case.

9. Learned counsel for the petitioner has also tried to

highlight certain discrepancies in the colour of

recovered article to seek release of the petitioner

on bail. Again this is an issue to be decided by the

trial court at the appropriate stage.

10. Considering the fact that commercial quantity of

charas was recovered, the present case falls within

the ambit of Section 37(1)(b) of the NDPS Act. The

accused is purported to be indulged in activities

which are lethal to the society and it is in the

interest of the society that he is kept behind the

bars during the pendency of the proceedings

before the court. At this stage of trial it cannot be

said that petitioner was not guilty of the offence

under the NDPS Act. Hence, I find no merits in

this application and the same is accordingly

dismissed.

ARUNA SURESH (JUDGE) September 17, 2008 jk