Satnley Chibuike vs State Govt. Of Nct Of Delhi
2011 Latest Caselaw 2893 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 BAIL APPL. NO.27/2011

                                     Date of Decision : 30.05.2011

SATNLEY CHIBUIKE                                ......Petitioner
                               Through:   Mr.Haneef Mohd., Adv.

                                Versus

STATE GOVT. OF NCT OF DELHI                 ...... Defendant
                      Through:            Mr. M.N.Dudeja, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?
2.    To be referred to the Reporter or not ?
3.    Whether the judgment should be reported
      in the Digest ?

V.K. SHALI, J. (Oral)

1. This order shall dispose of the present bail application filed by

the petitioner in respect of an FIR no.68/2009, u/S 21(b)/29

of NDPS Act and u/S 14 of the Foreigner Act registered by

P.S. Special Cell, NR.

2. I have heard the learned counsel for the petitioner as well as

learned APP for the State.

3. The contention of the learned counsel for the petitioner is that

the petitioner has been in custody since 17.12.2008 and for

the last two years, only six witnesses have been examined

and secondly, it has been contended that the parcel which

was booked and purportedly contained the contraband item

was actually booked by Ms.M.Naik while the prosecution case

was that it was booked by the wife of the petitioner Smt.Ritu.

4. It is stated that M.Naik has neither been cited as a witness

nor examined till date. At the time when the parcel was

booked, the documents for identification proof of M.Naik were

found on record along with the parcel and the case of the

prosecution that the parcel was booked by Smt. Ritu is

completely belied.

5. It has been contended that even PW-4, Mr.Pawan Kumar who

was examined has clearly stated that the packet which was

handed over to him was not in a sealed condition. Therefore,

the possibility of the sample being tampered with, cannot be

ruled out. So far as the case of the prosecution is concerned,

it is stated that the parcel which contained the books and the

contraband, the name of the addressee as well as sender was

written on a separate piece of paper while as when the

recovery was effected, it has been found that there was no

separate piece of paper affixed on the parcel, instead the

name of the receiver and the sender was written on the parcel

itself.

6. The learned counsel has tried to take advantage of the purity

of the contraband by urging that keeping in view the purity of

the contraband of the total quantity cannot be said to be of a

commercial in nature and consequently, the petitioner

deserves to be enlarged on bail. The learned counsel for the

petitioner has placed reliance on the bail order passed by the

learned Single Judge of this Court in Bail Appl.No.957/2010

titled Odidika Innocent Osita Vs. NCB to contend that in

case there is a possibility of parcel being tampered with the

accused deserves to be enlarged on bail.

7. As against this, the learned APP has vehemently opposed the

bail application of the petitioner. It has been contended that

the petitioner is a part of a well entrenched syndicate dealing

with the drugs and contraband and their export. It is also

stated that apart from the fact that the petitioner did not have

the valid travel documents to stay in India. The passport was

stated to have been lost while as he had no Visa to stay in

India.

8. So far as the question of identification of the person who

booked the parcel is concerned, it has been stated that

although the documents show that the parcel is purported to

have been booked by M.Naik but there seems to be some

discrepancies on that score because the wife of the petitioner

has specifically made a statement under Section 164 Cr.P.C.

which has been duly proved, during the course of the trial

that it was at the instance of the present petitioner, that she

had booked two parcels containing contraband on 06.12.2008

and 08.12.2008. In the light of this statement of Smt.Ritu

who was admitted to be in live-in-relationship with the

petitioner, recorded by the learned Magistrate under Section

164 Cr.P.C., it is stated that the contradiction which is

sought to be seen by the learned counsel for the petitioner

with regard to the identification of the person who booked the

parcel is only illusory.

9. It is contended by the learned APP that the trial is at an

advanced stage and therefore, if at all the petitioner is

released on bail at this stage, he is likely to go underground

or evade the appearance before the Court and, therefore, it is

not a fit case for grant of bail.

10. I have considered the respective submissions and have also

gone through the Trial Court record. At the outset, it must be

stated that the learned counsel for the petitioner has made an

incorrect statement during the course of submissions. It has

been stated in the application as well as during the course of

submissions that only six witnesses have been examined so

far, while as the record of trial court that shows that 19

witnesses have already been examined and the matter is

listed for 1st and 2nd June, 2011 for the purpose of recording

of further evidence.

11. I have perused the order sheets of the trial Court and it seems

that the learned Special Judge is cognizant of the fact that

the petitioner is in custody for the last two years and

therefore, every effort is being made by him to expedite the

trial.

12. So far as the question of identity of the person who is

purported to have booked the parcel is concerned, the plea of

the learned counsel is that it was booked by M.Naik and her

documents of identification are attached to the parcel, are

insignificant on account of the fact that admittedly Smt.Ritu

was having in 'live in relationship' with the present petitioner,

she has categorically made a voluntary statement under

Section 164 Cr.P.C. before the Judicial Magistrate to the

effect that it was 'she' who at the instance of the present

petitioner sent books by way of two parcels, to two different

persons in UK which was handed over to her by the present

petitioner. This statement under Section 164 Cr.P.C. has

been duly proved and has been recorded and exhibited by the

learned Judge.

13. In the light of this statement, the question as to whether the

statement of Ritu under Section 164 Cr.P.C. is to be believed

or not as to whether the plea of the learned counsel for the

petitioner for identification of the person who had booked the

parcel is other than Ritu and the consequent effect thereto, is

essentially falls into the domain of appreciation of evidence

which cannot be done at this stage of consideration as to

whether the bail is to be given to the petitioner or not. I feel

that at this stage, this Court cannot go into this aspect of the

matter as it would be prejudicing the merits of the case by

appreciating the evidence.

14. I have also gone through the order passed by the learned

Single Judge of this Court in Bail Appl. No.957/2010 titled

Odidika Innocent Osta Vs. NCB where bail was granted to

him. Merely on account of the fact that the bail in a

particular case has been granted to a foreigner on the ground

that in a case of NDPS Act does not ipso facto entitles the

petitioner to bail in the present case. In the said case, the

High Court had found various discrepancies in the testimony

as well as the reason for tampering with the sample and

consequently, considering the cumulative effect of the same,

it had granted the benefit of discretion in favour of the

petitioner.

15. As against this, in the present case, I am of the considered

view that at the advanced stage of the case when substantial

number of witnesses have already been examined, it will be

pre-judging the entire case by going into minute dissection of

the evidence and their appreciation of evidence. Suffice, it

would be here to mention that Ritu admittedly had a live in

relation with the present petitioner and has testified against

him on oath and there is absolutely no reason to prima facie

disbelieve her testimony, so far as the booking of the parcel at

the instance of the present petitioner are concerned.

Therefore, I feel that these minor variations with regard to the

hand writing of the petitioner appearing on the slip while as

finally name appearing on the envelope itself, the so called

tampering with the parcel are questions to be dealt with at

the stage of final decision in the case and not for the ground

of consideration of bail.

16. Keeping in view the totality of circumstances and the stage at

which the trial is placed, I feel that if the discretion is

exercised in favour of the petitioner, he is going to flee from

the processes of law. Accordingly, in my opinion it is not a fit

case where the petitioner deserves to be enlarged on regular

bail. However, the learned Special Judge will make every

endeavor to complete the recording of prosecution evidence as

expeditiously as possible.

17. With these directions, the bail application of the petitioner is

dismissed. Expression of any opinion may not be treated as

an expression on the merits of the case.

V.K. SHALI, J.

MAY 30, 2011 RN