Delhi High Court
Amachi Jude Onyeka vs State on 13 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13th October, 2014
+BAIL APPLN. 1082/2014
AMACHI JUDE ONYEKA ..... Petitioner
Through: Mr. Vikas Gautam, Advocate
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Additional Public
Prosecutor for the State with SI Gopal
Singh Police Station Mehrauli
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
ORDER
: SUNITA GUPTA, J.
1. This is an application under Section 439 of Code of Criminal Procedure
moved by the petitioner for releasing him on bail in a case FIR No.563/2012 under
Sections 21/65/85 of NDPS Act registered at Police Station Mehrauli. As per the
allegations in the FIR, the petitioner was apprehended by the police on 19.12.2012
at about 2.15 am at Western Marg Saidulajaib, New Delhi while he was travelling
in an auto rickshaw bearing registration number DL 1RH 0562, which was
stopped by the police on suspicion. Two Nigerians were found sitting in the auto
rickshaw. However, one of which fled away from the spot while the petitioner was
apprehended with one paper handbag in his possession. The hand bag being
carried by the petitioner was found to be containing some cocaine like substance
and the same had dullinuma illicit article which on seeing or smell seemed to be
cocaine weighing 800 gm. As such, the petitioner was arrested after completing
formalities and the FIR was registered against him.
2. It is submitted by learned counsel for the petitioner that when the sample
was tested it gave positive test only for the presence of diacetylmorphine (heroin)
with a given purity of 49% and was not opined to be cocaine. After filing of the
charge-sheet, one application was moved by the petitioner/accused for retesting of
the contraband substance which was allowed by the Court and two fresh samples
were drawn on 31.05.2013 and one of the samples was tested by FSL Rohini and
the same also opined to be containing diacetylmorphine (heroin) with given purity
of 32%. It was further submitted by learned counsel for the petitioner that in view
of the conflicting reports of tests carried out by the police officials and the FSL
Laboratory, it is doubtful as to what was the actual nature of substance allegedly
seized from the possession of the petitioner/accused and further in view of the
drastic fall in the purity percentage in the above two reports from 49% to 32%, the
very nature of seized contraband substance is under serious doubt and, therefore,
the petitioner is entitled to be released on bail. Reliance was placed on Ram
Narayan v State 121 (2005) DLT 166; Rahul Saini v The State 2006 VII AD
(Delhi) 531; Ram Narayan (supra) and Rahul Saini (supra) 2011 (4) CC Cases
(HC) 386; and NCB v Sukh Dev Raj Sodhi 2011(4) JCC 212. It was further
submitted that the petitioner is in custody since 19.12.2012, the petitioner is living
with a lady in live-in-relationship and having one child out of the relationship and
there is no reason of his absconding from the trial. As such, it was submitted that
the petitioner be released on bail.
3. The application is vehemently opposed by learned Additional Public
Prosecutor for the State on the ground that the bail application was dismissed by
learned Special Judge, NDPS by a speaking order. As regards the judgment
rendered in Ram Narayan (supra) and Rahul Saini (supra), it was submitted that
the same does not help the petitioner inasmuch as those judgments were passed
prior to notification dated 18.11.2009. As per the notification, entire weight of the
substance or mixture is to be considered and not only its purity or drug content. As
such, the difference in the purity percentage is removed as far as weight of the
substance is concerned. It was further submitted that the petitioner is a Nigerian
national and, therefore, the possibility of his fleeing away cannot be ruled out as
one Nigerian passport was recovered from the petitioner which was found to be a
fake document on verification from High Commission of Nigeria. Moreover, a
very vague plea has been taken by the petitioner that he is living with a lady in
live-in-relationship having one child. However, the details have not been furnished
and even no proof to that effect has been furnished. It was further submitted that
out of 14 witnesses, 8 witnesses have already been examined as such there is no
ground to release the petitioner on bail.
4. Learned Trial Court vide its order dated 19.02.2014 extensively dealt with
the issue of the variation in the two test reports with regard to the purity
percentage of diacytelmorphine(heroin). It was observed by the learned trial court:
"Under the NDPS Act, a quantity of 2 gms of cocaine
is prescribed as small quantity and 100 gms of cocaine
is prescribed as commercial quantity and as far as the
diacetylmorphine (heroin) is concerned, the quantity of
5gms is the prescribed small quantity and the quantity
of 250 gms is a commercial quantity. In this case, a
recovery of 800 gms of the contraband substance
suspected as cocaine was effected from the accused
and the recovery was not effected on the basis of a
secret information,but it was a case of chance recovery
and one other associate of the applicant/accused had
also managed to flee away from the spot. Even though,
the above substance might have tested positive for
cocaine in the testing done by the police officials, but
in the two test reports of the FSL, Rohini, which is a
competent authority to test the same, the same has
been found to be positive for diacetylmorphine
(heroin) and even Ld counsel for the applicant/accused
has himself admitted that even going by the purity
percentage of 32% given in the second test report
dated 10.09.2013, the weight of the above substance
will still remain to be commercial. However, this
purity percentage given in the above report is no more
relevant after the issuance of the notification No. S.O.
2941 (E) dated 18.11.09 of the Ministry of Finance,
Department of Revenue, Government of India, vide
which it has been laid down that the entire weight of
such substance or mixture is to be considered by this
court and not only its purity or pure drug content.
Hence, the above difference in the purity is irrelevant
as far as the weight of the above substance is
concerned."
5. It was rightly observed by the Trial Court that the purity percentage with
regard to the contraband substance seized under the relevant provisions of the
NDPS Act is irrelevant after the above notification issued by the Ministry of
Finance, Government of India where it was laid down that the entire weight of
such substance or mixture is to be considered and not only its purity percentage.
6. Both the decisions rendered in Ram Narayan (supra) and Rahul Saini
(supra) were prior to the notification referred to above and, therefore, does not
help the petitioner. As regards the DRI (supra), in that case the Trial Court had
admitted the accused on bail and the same was challenged by DRI. After
considering entire material on record and the evidence which had come on record,
a Single Judge of this Court observed that that the sample sent to the laboratory
and the percentage was totally doubtful. The colour of the substance was also
found to be different from the substance recovered from the accused and as such
the Court refused to interfere with the order passed by the Trial Court. Sukh Dev
Raj Sodhi (supra), is a case where the Trial Court convicted the accused for
offence under NDPS Act. In appeal, the accused was acquitted for non-
compliance of provisions of Section 50 of NDPS Act. The NCB preferred an
appeal before the Hon'ble Supreme Court and the same was dismissed due to non-
compliance of statutory provisions incorporated under Section 50 of NDPS Act.
However, in the instant case, the trial is still going on and, therefore, at this
juncture it will not be desirable to make any comment regarding non-compliance
of Section 50 NDPS Act.
7. Under the circumstances, there is no ground to release the petitioner on bail
at this stage. As such, the application is dismissed. However, it is impressed upon
the learned Trial Court to expedite the trial of the case.
The application stands disposed of.
SUNITA GUPTA, J
OCTOBER 13, 2014/rd
