Harish Joshi vs Dri
2009 Latest Caselaw 115 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+            BAIL APPL. NO. 2449/2008

                                Date of decision : 16.01.2009

#     HARISH JOSHI                           ...... Petitioner
!                   Through : Mr. Dinesh Mathur, Sr. Adv.
                              with Mr. Vikas Gupta, Adv.

                             Versus

$     D.R.I.                             ......Respondent
^                   Through : Mr. Satish Aggarwal, Adv.
                              IO Alkesh Rao,
                              Asstt. Director Nilank Kumar,
                              DRI .

%
      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.

1. On receipt of specific intelligence by the officers of

Directorate of Revenue Intelligence (hereinafter

referred as „DRI‟) that one person would come in a

Tata Indica Car bearing Registration No. UP 14-AK-

0505 carrying narcotic drugs concealed in a

suitcase which would be transferred to another

person who would also come to the designated

place of delivery of drugs i.e. opposite DLF Golf

Course, Gurgaon at about 6.00 P.M. on 8.9.2008,

surveillance was organized near DLF Golf Course.

At about 6.30 P.M. the said vehicle while coming

from Delhi when did not stop near the DLF Golf

Course, was followed by DRI officers. The said

Tata Indica car took a right turn after reaching the

red light and after about 500 meters took a left

turn and entered into a lane. The said vehicle

stopped near the petitioner/accused who seemed to

be waiting for the said car. DRI officers continued

to stay in their own car and watched from some

distance that a person had alighted from the said

Tata Indica Car and talked to the petitioner and

when DRI officers tried to intercept the said car,

the person who had come out of the car managed

to escape whereas petitioner got inside the car

which took U-turn and sped away towards Delhi.

2. The said vehicle was finally intercepted and

stopped by the DRI officers opposite Shiv Murti,

near Mahipal Pur, New Delhi at around 7.30 P.M.

The DRI officers looked inside the car but did not

find anything incriminating on or underneath the

seats of the car. Thereafter, on the asking of the

DRI officers, the driver of the car opened the

dickey of the car wherein a black coloured zipper

trolley suitcase was found. DRI officers also

inquired about the identity of the person who was

sitting inside the car. One of the occupants was

the petitioner. However, the driver of the car

expressed his ignorance if any narcotics drugs

were being carried in the car. The petitioner is

alleged to have admitted that he had to take

delivery of the suitcase containing 5 kg heroin

concealed therein lying in the dickey of the car.

The person who was successful in running away

was identified as Sanjay.

3. A notice under Section 50 of the Narcotic Drugs

and Psychotropic Substances Act, 1985

(hereinafter referred as „Act‟) was issued to the

petitioner and other co-accused persons before

conducting their personal search as well as search

of the suitcase and the car. Petitioner and other

co-accused persons expressed in writing that they

did not want presence of a Magistrate or a

Gazetted officer for their personal search or for

search of the vehicle or the suitcase. Thereafter,

petitioner along with other co-accused were taken

to CGO Complex, New Delhi. There the Indica Car

was searched; the suitcase was taken out from

dickey of the car along with other documents

pertaining to the vehicle. On opening the suitcase

and its careful examination in the presence of the

petitioner and other accused persons revealed that

the said suitcase contained old and used clothes

and on removing base fabric of the suitcase a

sunmica sheet was found affixed and after

removing the said sheet, five packets wrapped with

transparent tape were found placed on another

sunmica sheet attached to the base of the said

suitcase. The packets were found to contain heroin

each packets weighing 1.070 kg., 1.070 kg., 1.075

kgs., 1.074 kgs. and 1.078 kg. respectively.

4. Thereafter, other formalities like taking out sample,

sealing the case property etc. were completed.

Panchnama was prepared on 9.9.2008 which was

signed by the accused persons and panch witnesses

as well as intelligence officer and the accused

persons were arrested. The Intelligence officer also

recorded statement of the accused persons

including the petitioner under Section 67 of the

Act.

5. Petitioner has filed this petition under Section 37 of

the NDPS Act read with Section 439 Code of

Criminal Procedure (hereinafter referred to as

„Cr.P.C.‟) seeking his release on bail. The bail

application is vehemently opposed by the

respondent department.

6. Mr. Dinesh Mathur, senior counsel appearing for

the petitioner has argued that the Investigating

Agency has not complied with the mandatory

provisions of Section 50 of the Act as notice under

Section 50 of the Act is pre-requisite before

conducting search of any person under the

provisions of Sections 41, 42 or 43 of the Act and

the search was not conducted by a Magistrate or a

Gazetted officer.

7. Notice under Section 50 of the Act allegedly served

upon the petitioner was not in accordance with law.

It is also argued that DRI officers did not offer their

search to the accused persons thereby violating the

provisions of the said Section. It is also submitted

that DRI officers had searched the vehicle at the

spot where it was intercepted but nothing

incriminating was found in the car or underneath

the car seats.

8. It is further submitted by learned counsel for the

petitioner that the alleged declaration of petitioner

to the fact that he was to take delivery of the

suitcase containing 5 kg of heroin concealed

therein and lying in the dickey of the Indica Car in

which he was travelling, was obtained by the DRI

officers on the spot and the petitioner was arrested

before notice under Section 67 of the Act was

served upon him, as the said notice was served

upon the petitioner on 9.9.2008. Therefore, the

petitioner was also in custody when notice under

Section 67 of the Act was served upon him and his

statement was recorded. The notice under Section

67 of the Act was therefore served upon the

petitioner as a mere formality in view of the fact

that inquiry had already been made about the

contents of the bag and no further investigation

was required. It is submitted that statement of the

petitioner recorded under Section 67 of the Act

while in custody is in complete contravention of

law.

9. It is further submitted by learned counsel for the

petitioner that as per the panchnama, DRI officers

had left the office along with witnesses at 4.45 P.M.

on 8.9.2008 for the spot and they stopped the

Indica Car at about 6.30 P.M. The vehicle was

finally intercepted at about 7.50 P.M.; whereas

Petitioner was actually abducted from the

compound inside the colony of DLF Exclusive

Apartment, Gurgaon at about 7.00 P.M. for which a

report being DD No.38 dated 8.9.2008 was lodged

by Surender Kumar, Supervisor of the said

Apartment with Police Station Sushant Lok at

about 8.15 P.M. It is alleged that timing of the

entire episode of abduction and the event as

narrated in the panchnama are contemporary and

in view of the said coinciding, two views are

possible.

10. It is submitted that the timing of abduction and the

alleged interception of car at about 7.50 P.M. by

the DRI officers, clearly indicate that petitioner was

lifted from his house and was falsely implicated in

this case.

11. It is further argued that Indica Car was allegedly

intercepted and stopped across Shiv Murti and

from the place where the petitioner got into the car

to reach to Shiv Murti, the vehicle had to first come

on the M.G. road and from there it had to cross Toll

Plaza. Indica Car could not have crossed Toll Plaza

without paying the toll tax. Surprisingly, the DRI

officers who were chasing the Indica Car could not

even intercept or stop the said vehicle before it

could cross Toll Plaza, especially when the Car

must have stopped for a few minutes to pay the toll

tax. Therefore, according to the petitioner, the

entire story of the prosecution regarding the

information and chase of the car, its interception

across Shiv Murti is full of dents and is not

believable.

12. It is also submitted that DRI officers did not take

any assistance of the local police, which under

normal circumstances, should have been taken. The

alleged two witnesses to the panchnama had

accompanied the DRI officers from their office

itself and are not independent witnesses.

13. It is further argued that statement of the petitioner

recorded under Section 67 of the Act tantamounts

to confession made to a police official and therefore

cannot be proved against the petitioner for the

offence allegedly committed by him. The statement

made under Section 67 of the Act was retracted by

the petitioner. Therefore, he has prayed that

petitioner be released on bail.

14. Section 25 of the Indian Evidence Act has to be

read with Section 67 of the Act for considering

admissibility of the statement made by the

petitioner to the police under Section 67 of the Act.

15. Mr. Satish Aggarwal, learned counsel appearing for

the respondent department has argued that

petitioner is an NRI and is permanent resident of

Canada and was staying at Gurgaon in a rented

premises. The investigation is at its initial stage.

The petitioner himself admitted in his statement

recorded under Section 67 of the Act that he was to

take delivery of the contraband from Sanjay near

Radison Hotel but, thereafter, he changed the place

of delivery and asked Sanjay to meet him at DLF

Gold Link and also disclosed that he would be

standing and waiting in a lane and when the car

reached the place where he was stay, Sanjay got

down and ran away and he sat in the car.

Therefore, as per his confessional statement, the

petitioner was found in possession of 5 kg of heroin

packed in five separate bags.

16. It is further argued by learned counsel for the

respondent department that by virtue of provisions

contained in Section 37 of the Act, petitioner is not

entitled to be released on bail because for releasing

the petitioner on bail, additional requirement of

Section 37 besides the conditions as laid down

under Section 167 Cr.P.C. and 437 Cr.P.C. are

required to be complied with. Heroin recovered

was of commercial quantity and therefore

provisions of Section 37 of the Act are applicable to

the facts and circumstances of this case, which,

restricts the power of the court to release the

petitioner on bail.

17. It is submitted that petitioner had made a

statement under Section 67 of the Act voluntarily,

without fear, pressure or threat and was written by

him in his own hand-writing and that the alleged

retraction by the petitioner was nothing but an

afterthought and based on legal advice. It is urged

that DD No.38 regarding abduction recorded at

Police Station Sushant Lok, Gurgaon was found

without substance and it was closed by the

concerned police officials on 9.9.2008 after

investigating officers of the said DD made inquiries

from officers of DRI.

18. It is also submitted that petitioner was got

medically examined by the doctor of Dr. Ram

Manohar Lohia Hospital, New Delhi before he was

produced in the court. It is prayed that under the

circumstances, petition deserves dismissal.

19. Jurisdiction of the court to grant bail for an offence

under NDPS Act is circumscribed by the provisions

contained in Section 37 of the Act. This Section

starts with non obstante clause and has an

overriding effect over the provisions regulating bail

contained in Cr.P.C. This section makes offence

cognizable and non bailable. A person accused of

offence punishable under Section 19 or Section 24

or 27-A and also for offence involving commercial

quantity is not entitled to be released on bail unless

the Public Prosecutor has been given an

opportunity to oppose the application for such

release and/or where the Public Prosecutor

opposes the application, the Court is satisfied that

there are reasonable grounds for believing that

accused is not guilty of such offence and that he is

not likely to commit any offence while on bail.

These limitations on grant of bail specified in the

Section are in addition to the limitations prescribed

under the Cr.P.C. Section 37 of the Act reads as

follows:-

"37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not

guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail.]"

20. Thus, the two limitations for grant of bail provided

under Section 37 of the Act are (i) an opportunity

to the Public Prosecutor to oppose bail application

and (ii) the satisfaction of the court that there are

reasonable grounds for believing that accused is

not guilty of such offence and that he is not likely

to commit any offence while on bail. The

limitations on grant of bail come only when the

question of granting bail arises on merits. The

second condition is twofold, firstly, the court has to

be satisfied that there are reasonable grounds for

believing that the accused is not guilty of the

alleged offence and, secondly, that he is not likely

to commit any offence while on bail. These two

conditions are cumulative and are required to be

fulfilled and in no manner can be treated as

alternative.

21. Emphasis is on the words „reasonable grounds‟.

Reasonable grounds means that court should be

satisfied something more than prima facie grounds.

There must be substantial probable causes for

believing that the accused is not guilty of the

alleged offence. In other words, the provision

requires existence of such facts and circumstances

as are sufficient in themselves for justified

satisfaction of the court that the accused is not

guilty of the alleged offence. Reference is made to

„N.R. Mon vs. Md. Nasimuddin, 2008 (3) JCC

(Narcotics) 170‟, in the said case it was

observed:-

7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are : the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, and that

he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds"

means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence................"

Reference is also made to „Union of India vs. Ram

Samujh & Anr., (1999) (9) SCC 429‟ and

„Babua Alias Tazmul Hosssain vs. State of

Orissa, (2001) 2 SCC 566‟.

22. The abovesaid provisions are mandatory in nature

and are required to be adhered to by the Court.

Accused who are involved into drug trafficking are

responsible for the death of number of innocent

young victims who are vulnerable and it causes

deleterious effects and deadly impact on the

society. These persons, even if released temporarily

on bail, there is every possibility and probability

that these persons would continue their nefarious

activities or trafficking or dealing in narcotics,

intoxicants clandestinely, may be because of large

stake and illegal profit.

23. At the same time, Section 37 of the Act has to be

construed in a pragmatic manner and no such

construction can be given to the Section in such a

way so as to negate the right of a party to obtain

bail, which is otherwise, a valuable right for

practical purposes. For considering application for

grant of bail, a detailed reasoning may not be

necessary to be assigned in the order but must

demonstrate application of mind, atleast in serious

cases, as to why an applicant has been granted or

denied privilege of bail. (Reference is made to

„State of Uttaranchal vs. Rajesh Kumar Gupta‟,

2006 (3) JCC [Narcotics] 178‟).

24. Section 37 of the Act in no manner suggests that

an accused in custody must wait till the time the

trial of the case is taken up to satisfy the court that

there are reasonable grounds for believing that he

is not guilty of such offence, provided, the

necessary material was available on record for the

court to conclude that the satisfaction as required

under the Section was met. The Court is not to

give a finding that accused is not guilty, or guilty,

which is to be recorded after the conclusion of the

trial, whereas the satisfaction as required under

the Section has to be arrived at by the court before

the conclusion of the trial, may be at any stage of

the investigation or in due course of the trial itself.

25. The court, therefore, cannot shirk its responsibility

by postponing the consideration of the fact whether

reasonable grounds exist for believing that the

accused is not guilty till the stage of actual trial. If

materials are shown to exist on the basis of which

court can feel satisfied that there are reasonable

grounds for believing that the accused is not guilty,

the Court should not take recourse to any other

alternative other than recording its necessary

satisfaction. The court has also to express its

satisfaction that accused is not likely to commit any

offence while on bail. For that purpose criminal

antecedents of the accused can also be considered

by the court. Reference is made to „(Satyendra

Sah vs. State of Bihar, 1996 (1) Crimes 267

(H.C.) Patna High Court)‟.

26. Keeping in mind the provisions of Section 37 of the

Act as analysed above, for grant of bail for an

offence under the Act, I shall now proceed with the

present application on its merits.

27. About 4.863 kg. (in net) heroin concealed in a

suitcase was recovered from the dickey of Tata

Indica Car bearing registration No. UP 14-AK-0505.

The samples of the recovered substance were sent

to Central Revenues Control Laboratory, New Delhi

for quantitative test. Each of the samples gave

positive test for Diacetyle Morphine (Heroin) and

total purity test was 55.34% average. Thus, the

heroin recovered is of commercial quantity. The

provisions of Section 37 of the Act are applicable to

this case which are mandatory to be considered by

this court while considering this bail application.

Public Prosecutor has been given an opportunity to

oppose the application for release of the petitioner

on bail and has been heard at length. Therefore,

first condition contained in Section 37 (1) (b) of the

Act is complied with.

28. Now it is to be seen whether, there are reasonable

grounds for this court to believe that petitioner is

not guilty of an offence under the Act and also that

he is not likely to commit any offence while on bail.

29. One of the apprehensions of the respondent-

department is that petitioner being NRI and

permanent resident of Canada, there is every

likelihood that he would abscond, if released on

bail. Undisputedly, the passport of the petitioner

has already been seized by the intelligence officer.

Therefore, under these circumstances, the fear

expressed by the learned counsel for the

respondent department that petitioner would jump

bail, if released being NRI is without any

substance.

30. Section 41 of the Act confers powers on a

Metropolitan Magistrate or a Magistrate of the first

class or any Magistrate of the second class so

empowered by the State Government to issue a

warrant for the arrest of any person whom he has

reason to believe to have committed any offence

punishable under this Act. He can also issue

warrants for the search, whether by day or by

night, of any building, conveyance or place in

which he has reason to believe any narcotic drug or

psychotropic substance or controlled substance in

respect of which an offence punishable under this

Act has been committed or any document or other

article which may furnish evidence of the

commission of such offence. This Section also

provides that any officer of Gazetted rank of the

departments of central excise, narcotics, customs,

revenue intelligence or any other department of the

Central Government who has such personal

knowledge or information given by any person, may

authorise any officer subordinate to him, but

superior in rank to a peon, sepoy or a constable, to

arrest such a person or search a building,

conveyance or place whether by day or by night or

himself arrest such a person or search a building,

conveyance or place. Such authorized an officer

has all the powers of an officer acting under

Section 42 of the Act.

31. Section 42 of the Act empowers such an officer to

enter into, search, seize and arrest without warrant

or authorization if he has reason to believe that

search warrant or authorization cannot be obtained

without affording opportunity of the concealment of

evidence or facility for the escape of an offender,

may enter and search such building, conveyance or

place at any time between sunset and sunrise.

Section 43 of the Act speaks of power of seizure

and arrest in public place.

32. Section 50 of the Act lays down conditions under

which search of a person has to be conducted.

Provisions of Section 50 of the Act are mandatory

in nature and therefore, breach of the condition

vitiates the trial, as non compliance would result

non relevance of search and consequent seizure of

goods. After a person is arrested and before a

search is conducted, it is mandatory to inform the

accused that he has a right to be searched in

presence of a Gazetted officer or a Magistrate.

Accused is entitled to benefit of acquittal if there is

failure to comply with the provisions.

33. Section 50 of the Act which refers to conditions

under which search of person shall be conducted,

provides in its sub-Section (1) that when officer

duly authorized under Section 42 is about to search

a person under the provisions of Sections 41, 42 or

43, he shall, if such person so requires, take such

person without unnecessary delay to the nearest

Magistrate or Gazetted Officer. Sub-section (2)

prescribes that if such requisition is made, the

officer may detain the person until he can bring

him before the Gazetted Officer or Magistrate

referred to in sub-section (1). It, thus follows that

a mandate of the said provision is required to be

strictly observed by the officer intending to search

a suspect of possessing drugs by informing him of

his right to be searched in the presence of the

Gazetted Officer or a Magistrate. (Narcotic Drugs

and Psychotropic Substances in India, (Second

Edition), by R.P. Kataria).

34. Bare reading of Section 50 of the Act therefore

shows that it only applies in case of personal

search of a person. It does not extend to search of

a vehicle or container or bag or premises or

luggage of such person because, luggage does not

form part of a person. Wherein the luggage of the

accused is a subject matter of search, provisions of

Section 50 of the Act would not apply and in such

like circumstances it is not legally required by an

officer to make an offer to the accused for search

in presence of a Gazetted officer or a Magistrate.

35. In „Madan Lal & Anr. vs. State of H.P. , (2003)

7 SCC 465‟, a car was intercepted by the raiding

party who had prior information that the said car

carried charas and the driver of the said car and

other accused persons were found sitting and an

option was given to the accused persons as to

whether they wanted to be searched by a

Magistrate or by him and appellant consented to

the search by Jainarain and on personal search

nothing incriminating was found on their person.

However, on search of the car, a bag was found to

contain a steel doloo containing charas and it was

submitted that mandatory requirement of Section

42 and 50 were not complied with. It was held that

Section 50 would apply only in case of a personal

search of a person and it does not extend to search

of a vehicle or a container or a bag or premises and

therefore the contention regarding non compliance

of Section 50 of the Act was found without any

substance. Reference is also made to State of

Himachal Pradesh v. Edward Samual

Chareton, 2001 Crl.LJ, 1356‟, and „Rajendra v.

State of Madhya Pradesh, 2004 (13) AIC 35

(SC)‟, and „Gurbax Singh v. State of Haryana,

2001 (3) SCC 28‟.

36. In the present case, as per panchnama, DRI

officers served notice under Section 50 of the Act

to the petitioner and other accused persons in the

presence of the witnesses, Shri Raj Kumar and Shri

Omvir and the petitioner and other accused

persons expressed their option in writing on the

said notice that they did not require presence of a

Magistrate or a Gazetted officer either during their

personal search or during rummaging of the Indica

Car or during search of the said suitcase which was

lying in the dickey of the car and that any officer of

DRI could conduct such searches. DRI officers

conducted search of the Indica Car resulting into

recovery of one black coloured zipper trolly

suitcase from the dickey of the car, documents

pertaining to the registration and insurance of the

vehicle and DRI officers subsequently conducted

search of the suitcase in their office at CGO

Complex, New Delhi. The said suitcase was found

to contain some old clothes and it was from the

bottom of the suitcase heroin was recovered after

removing it base fabric of the suitcase and the

synmica sheet. Since DRI officers conducted

search of vehicle and not personal search of the

petitioner and other co-accused person, the plea

that notice under Section 50 of the Act was not

duly served upon the petitioner is without any

substance and is not tenable especially when notice

was served upon the petitioner and co-accused

persons and they had given their option in writing

that they did not want any search to be conducted

by a Magistrate or a Gazetted Officer and any of

the DRI officers present there could conduct their

search.

37. Section 67 of the Act empowers the Investigating

Officer to call for information from any person for

the purpose of satisfying himself whether there has

been any contravention of the provisions of this Act

or any rule or order made thereunder or require

any person to produce or deliver any document or

thing useful or relevant to the enquiry. He has also

the power to examine any person acquainted with

the facts and circumstances of the case.

38. The intelligence officer served notice upon the

petitioner and other accused persons under

Section 67 of the Act and called upon them to

appear before him on 9.9.2008 at 3.15 P.M. in his

office. This notice is dated 9.9.2008 and was

stated to have been served upon the petitioner and

the other accused persons while they were in

custody of the DRI officers. Therefore, this notice

was a mere formality. It was in custody, the

statement of the petitioner was recorded under

Section 67 of the Act. Statement is purported to

have been written by the petitioner himself in his

own hand and under his signatures. Grouse of the

petitioner is that this statement was never made by

him voluntarily. He was pressurized and coerced to

write the said statement while in custody, which is

in complete violation of law. The said statement

was specifically retreated by the petitioner.

Learned counsel for the respondent-department

has submitted that the retraction was not valid as

when the petitioner was produced before the

Magistrate for remand, he never made any such

statement to the Magistrate retracting his

statement under Section 67 of the Act.

39. Confessional statement though retracted at the

subsequent stage can be used against the person

making it if the court is satisfied that it was not

obtained by threat, duress or coercion, but the

prudence and practice requires that the court

should seek assurance by getting corroboration

from other evidence adduced by the prosecution

and it is only if it gets general corroboration from

other independent source that such statement can

form basis for conviction of the accused. Statement

recorded under Section 67 of the Act by the DRI

officers is not hit by the provision of Section 25 of

the Evidence Act as the statement in the present

case is not made to a police officer, but to a person

who was acting under special statute. Statement

of the petitioner, recorded by the DRI officer while

he was in custody prima facie cannot be considered

voluntary. In cases under the NDPS Act,

prosecution is entitled to rely upon the statement

of the accused recorded during investigation.

However, what generally is done by the

Investigating Officer in such cases is to procure

statement may be by assault, illegal detention and

fear of continued detention. Law does not permit

such type of practice, though Intelligence officer

can certainly rely upon the statement made by the

accused voluntarily.

40. Whether statement of the petitioner recorded

under Section 67 of the Act was made voluntarily

without any coercion or pressure of any kind is a

question to be examined by the court at the trial of

the case. There is no other corroborative evidence

except statement of co-accused persons recorded

under Section 67 of the Act. Therefore, the

statement of the petitioner made under Section 67

of the Act is a very weak piece of evidence

gathered by the prosecution against the petitioner,

especially when it was recorded while petitioner

was in custody of the Intelligence officer.

41. As per the information with the DRI officers,

narcotic drugs concealed in a suitcase were to be

transferred near DLF Golf Course, Gurgaon at

around 6.00 P.M. on 8.9.2008. DRI officers along

with panch witnesses left the office at 4.45 P.M. for

the designated place of delivery of drugs. It was

around 6.30 P.M. vehicle UP 14-AK-0505 was

spotted on the road side in front of the Golf Course

coming from Delhi side. Since the vehicle did not

stop at the designated place, it was chased by the

DRI officers. The Tata Indica Car allegedly

stopped after taking a right turn and another left

turn in a lane near an elderly person i.e. the

petitioner. The occupants of Tata Indica Car did

not notice that they were being chased even after

the DRI officers stopped their car at some distance.

One of the occupants Sanjay allegedly got down

from the vehicle and talked to the petitioner. When

officers of the DRI tried to intercept and apprehend

the said car, accused Sanjay who got down from

the car managed to run away in a nearby lane.

Whereas knowing it well that they were being

chased, petitioner chose to sit in the Tata Indica

Car and the vehicle took a U turn and sped away

towards Delhi at a high speed. Why could not the

DRI officers immediately intercept the car which

admittedly took U-turn, cross them and sped

towards Delhi is not known. Interestingly, the

vehicle crossed DLF Golf course, Gurgaon, went to

M.G. road and from there to G.T. Road National

Highway No.8 for coming to Delhi and it was

accordingly chased by the DRI officers.

Conspicuously, occupants of Indica Car could get

themselves cleared at toll tax plaza after paying the

toll tax, but the DRI officers even then could not

intercept the vehicle and they continued to chase

the vehicle till they reached within the territorial

jurisdiction of Delhi i.e. opposite Shiv Murti, near

Mahipal Pur, New Delhi. There they did check the

inside and dickey of the car. Petitioner on

questioning allegedly admitted that the suitcase

present in the dickey contained heroin, but no

further proceedings were conducted there.

Petitioner and other occupants of the car along

with Tata Indica Car were brought to the CGO

complex where search of the suitcase and other

proceedings were conducted and the petitioner

along with other accused persons was arrested.

42. Interestingly, when petitioner was being allegedly

chased by DRI officers, one DD No.38 was got

recorded by Surinder Kumar, Security officer

/Supervisor of DLF Exclusive Apartment, Gurgaon

with Police Station Sushant Lok, District Gurgaon,

RTI Branch by giving written application to the fact

that he along with Virender, Head Guard, Manjeet

Singh, Security Guard and Satish Parashar,

Security Guard were on duty at Exclusive Main

Gate and at about 7.00 P.M. Harish Joshi, resident

of the apartment was roaming near the Pawan

Dhari, when one Indica Car having registration

No.UP-14 AK-505 came there which was occupied

by two other persons besides the driver. This

vehicle was followed by one Qualis Car bearing No.

DL-2C-AC-8252 of white colour which was occupied

by 7/8 boys. Those persons got down from the

vehicle and they forced the petitioner and the three

occupants of the Indica Car to accompany them, on

which Surinder Kumar made an inquiry as to why

they were quarreling, and one of those boys

informed him that they were from CBI and took

away the occupants of the India Car as well as the

petitioner. This fact is not disputed by the

respondent department. It is also not disputed that

on receipt of information from the respondent

department on 9.9.2008 at about 10.15 P.M.

regarding the arrest of the petitioner in a case

related to drugs and he had already been produced

before the court of ACMM, Patiala House, New

Delhi. Inspector Hariom, who was investigating the

complaint of abduction of the petitioner, closed

further investigation in the said DD. Under these

circumstances, even the place of apprehension and

arrest of the petitioner is in jeopardy.

43. When Tata Indica Car reached the place where the

petitioner was allegedly standing in a lane near

Golf Course, Gurgaon, it was already having two

occupants besides the driver, namely, Sanjy and

Anil Mohan and was already carrying 5 kg. of

heroin concealed in a suitcase kept in its dickey.

Petitioner was not carrying anything with him

when he occupied the car. Sanjay, the co-accused

who was actually carrying the narcotic drugs with

him and was the person who got down from the

car, allegedly talked to the petitioner and ran away

from the spot on seeing the DRI officers has not

been arrested by the Intelligence officer till date.

44. Learned counsel for the respondent has tried to

state that Sanjay could not be arrested as his

whereabouts or address is not known. This

submission is belied from the statement of co-

accused Anil Mohan recorded under Section 67 of

the Act. In the said statement Anil Mohan

disclosed that he knew Sanjay very closely as he

had met him in March, 2007 in Dasna Jail,

Ghaziabad, U.P. as he was locked up for one month

and Sanjay was undergoing sentence in a robbery

case. He had again met Sanjay in the court of

Collector, Raj Nagar, Ghaziabad, U.P. Lastly Sanjay

had talked to him on telephone on 9.9.2008.

Intelligence officer had enough clues to trace out

the whereabouts of Sanjay, may be from the court

record or the jail record maintained by Dasna Jail

where he had suffered sentence. The fact remains

that this casual approach of the Investigating

Officer has resulted into main culprit successfully

running away from law.

45. Therefore, under these circumstances, it becomes

doubtful if at all petitioner was consciously in

possession of the heroin especially when a

complaint was lodged at Police Station Sushant

Lok almost simultaneously indicating that at the

relevant time when the alleged incident took place,

petitioner was present in the complex of DLF

Exclusive Apartment, Gurgaon.

46. Tata Indica car was allegedly spotted at about 6.30

P.M., vehicle was intercepted opposite Shiv Murti

at about 7.30 P.M. i.e. within one hour of the

surveillance mounted by DRI officers. The timings

of the incident and the episode of alleged

abduction are contemporary. There is no mis-

match in the timings and therefore, under these

circumstances both views are possible. The factual

narration of incident, the manner in which Tata

Indica car was chased by DRI officers and the route

which was allegedly followed by Tata Indica to

come to Delhi; prima facie do not inspire

confidence in the court, though they may not be

improbable.

47. In „Sarija Banu @ Janarthani @ Janani vs.

State through Inspector of Police, 2005 (9)

SCALE 604‟, where in similar circumstances a

telegram was sent by one person to the Home

Secretary, Government of Tamil Nadu with copy to

Govt. of Tamil Nadu and another to the

Commissioner of Police, Chennai and other police

officials informing that police party had illegally

entered into the house occupied by the appellants

and had taken them into custody and their

whereabouts were not known and it was feared

that their life might be in danger and an immediate

action was requested to be taken to safeguard their

lives and no such action was taken, the court was

pleased to grant bail to the appellants observing

that from these facts it appeared that something

happened on a particular date i.e. on 9.3.2003 (in

the said case) for which a telegram was sent, as to

the whereabouts of the appellant were not known.

This was relevant factor for granting bail. In this

case, as already discussed above, a complaint

about abduction of the petitioner was lodged at

Police Station Sushant Lok, Gurgaon by the

Security Guard/Supervisor of the said apartment

where petitioner was residing as a tenant at the

time which coincided with the time of the incident

in question.

48. Petitioner has placed on record copies of certain

media reports appearing in different papers of 9 th

September and 10th September respectively.

Learned counsel for the petitioner has also

referred to some talks which took place between

Commissioner of Police Gurgaon who had also

reached the spot for purposes of investigation and

various TV channel reports which were

immediately reported from the spot after interview

of the eye witnesses to emphasise that petitioner

has been falsely implicated in this case. Be that as

it may, media reports, the interview of the

Commissioner of Police as to who the petitioner is

and also various reports appearing in different TV

channels cannot be looked into by this court while

considering this bail application. They are all

defences available to the petitioner which he is

entitled to raise at the relevant stage of trial.

49. Under these circumstances, I am of the view that

there are reasonable grounds for believing that

petitioner is not guilty of an offence under the Act.

Petitioner is not involved in any other offence nor

was involved in any offence prior to his arrest in

this case. He is a businessman running his

business in India and across the world. Therefore,

there is no likelihood of his committing any offence

while on bail.

50. Hence, bail application is allowed, petitioner is

ordered to be released on bail on his furnishing

personal bond in the sum of Rs.1,00,000/- (Rupees

one lac only) with two sureties in the like amount

each having immovable properties in Delhi to the

satisfaction of the trial court subject to the

condition that he shall not leave the NCT of Delhi

without the leave of the court and in case he is

permitted to leave NCT of Delhi, he shall keep the

intelligence officer fully informed about his

whereabouts and his latest address. His passport

shall not be returned back to him under any

circumstance till the trial of the case is over. He

shall report to the Intelligence Officer on First and

Third Monday of every month at 10.00 A.M. and

shall cooperate in the investigation of the case and

shall not in any manner try to influence or temper

with the investigation.

Attested copy of the order be sent to the trial court

as well as to the State through special messenger.

(ARUNA SURESH) JUDGE January 16, 2009 vk