Delhi High Court
Dri vs Emmanuel Chilkezie on 16 September, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3014/2011 & Crl. M.A. No. 10629/2011
% Judgment reserved on :13th September, 2011
Judgment delivered on: 16th September, 2011
DRI ..... Petitioner
Through : Mr.Satish Aggarwala and
Mr.Sushil Kaushik, Advs.
versus
EMMANUEL CHILKEZIE ..... Respondent
Through : Mr.Rahul Tyagi and Mr.V.V.P.
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
SURESH KAIT, J.
1. Vide this petition, the petitioner has assailed the order
dated 03.09.2011 passed by the learned ASJ/Spl. Judge,
NDPS, South & South East District, Saket Court Complex,
New Delhi, whereby has admitted the respondent on bail.
2. Ld. counsel for the petitioner submits, the
respondent/accused Emmanuel Chilkezie is facing trial for
commission of the offence punishable under Section 29 of
the NDPS Act r/w Section 23 of the NDPS Act with regard to
being part of a criminal conspiracy to deal in and export out
of India a commercial quantity of heroin weighing 1.987 kg.
3. It is pertinent to mention here that the respondent has
moved bail application long back, however, it is taken up for
disposal only after the other co-accused, namely, Bitoren
Dolores Fernandez was granted bail vide order dated
24.08.2011 by the trial court.
4. The trial court has recorded in the impugned order that
the recovery of the above heroin or any other contraband
substance was not effected from the respondent and he is
only being alleged to be part of a criminal conspiracy to deal
in the contraband substances and to export the above
quantity of heroin.
5. Vide order dated 24.08.2011, the trial court has already
directed the release of the afore-mentioned co-accused on
bail, subject to certain conditions, as there was observed to
be a huge difference in the percentage of diacetylmorphine
present in two contraband substance and tested in the CRCL.
While the percentage of diacetylmorphine in the sample
taken up of the above substance at the time of its seizure
was reported to be 86%, but in the second sample drawn out
of the remaining substance in the trial court, on an
application for redrawing of a fresh sample and testing
thereof moved by the above-mentioned co-accused, the
percentage of diacetylmorphine was reported to be only
41.3%. The trial court while relying on the propositions of
law as laid down in the cases of Sartori Livio vs.
State(Delhi Admn.) 2005 Drugs Cases (Narcotics) 443,
Starkl Ferdinand vs. State (Customs) 2005 Drugs Cases
(Narcotics) 571 and the orders passed by this Court dated
09.04.2009 in Crl. M.C. No.436/2009 and Crl. M.A.
No.1640/2009 titled NCB vs. Maroof Bakare and dated
15.09.2010 in Crl. M.C. No.2467/2010 by this Court, the
afore-mentioned co-accused was directed to be released on
bail as in view of the above judgments as there were serious
doubts regarding the nature of the contraband substance
recovered from the above-mentioned co-accused and the
substance taken as sample therefrom and hence in the light
of the above prepositions there were reasonable grounds for
believing that the above co-accused was not guilty of such
offence and was not likely to commit any offence while on
bail.
6. Keeping in view the above facts and circumstances and
on the ground of parity, the respondent has been released
on bail on the same terms and conditions as were imposed
on the co-accused, namely, Bitoren Dolores Fernandez.
7. This matter was heard on 13.09.2011 and reserved for
judgment. In the meanwhile, the DRI has filed Crl. M.C.
No.3076/2011 whereby they challenged the order passed by
ld. trial judge dated 08.09.2011, whereby the ld. trial judge,
on application filed by the petitioner, the matter was fixed
for date already fixed on 14.10.2011.
8. In the aforesaid Crl. M.C. No.3076/2011, which was
taken up on 14.09.011, the petitioner has drawn the
attention of this Court to the Arrest Memo, which is as
under:-
"Consequent to the recovery and seizure of
1.985 kgs heroin from a blue colour zipper
suitcase of American Tourister brand which was
recovered from the dickey of the Silver colour
Tata Indica car bearing registration No.DL-
3CAX-4435 in which Francis L. Hmar @
Muhammad Rashid, and Sukleswar Basumatary
were travelling, carrying and transporting the
above said recovered and seized drugs on
02/03.06.2008 and on the basis of statement
dated 03.06.2008 of Francis L. Hmar @
Muhammad Rashid tendered under Section 67
of the NDPS ACT, 1985, wherein he admitted
the recovery of seized 1.985 kgs heroin from his
possession supplied by Emmanuel and
statement dated 23.12.2008 of Emmanuel
Chilkezie R/o Flat No.T-304, Hill View
Apartment, Mehrauli, New Delhi, permanent
resident of House No.105, Umuaka Imo State,
Nigeria tendered under Section 67 of the NDPS
Act, 1985, wherein he admitted supply of said
drugs to Francis L. Hmar @ Muhammad Rashid
and the investigation conducted so far, it has
transpired that Emmanuel Chilkezie was
knowingly and willingly concerned in trafficking
of the said heroin and thus, committed offences
punishable under Section 21, 23 and 29 of the
NDPS Act, 1985. I, therefore, place Emmanuel
Chilkezie under arrest in exercise of powers
under Section 42 of the Act, ibid
at......................................."
9. Accordingly, on their submissions, I set aside the
order dated 08.09.2011 passed by ld. trial judge and
directed to hear this matter on 16.09.2011 and decide as per
law. It is pertinent to mention here that in Crl. M.C.
No.2970/2011 the same challenge was there and vide order
dated 16.09.2011, the above-said Crl. M.C. has been
dismissed after recording reasons therein.
10. Though, I find no discrepancy in the order passed
by the learned Special Judge. This matter was heard on
13.09.2011 and reserved for judgment. However, before
dictating the order in the instant petition, very next day, i.e.,
14.09.2011, the petitioner brought to my notice that the
respondent is also involved in some other case punishable
under Section 21, 23 and 29 of the NDPS Act, therefore, this
case has no parity with the case of the co-accused because
of the changed circumstances.
11. Since the petitioner is involved in other case, as
mentioned above, and the petitioner - DRI is going to serve
arrest warrants, therefore, I set aside the order dated
03.09.2011 passed by the ld. Special Judge.
12. Accordingly, Criminal M.C. 3014/2011 is allowed.
13. No order as to costs.
14. Criminal M.A.No.10629/2011 is hereby dismissed as
infructuous.
SURESH KAIT, J
September 16, 2011
RS
