Atul Aggarwal vs Dri
2015 Latest Caselaw 4526 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of Decision: 30th June, 2015
        +                           BAIL APPLN. 2149/2013
        ATUL AGGARWAL                                         ..... Petitioner
                   Through:              Mr. S.S. Dass, Advocate

                           versus

        DRI                                                  ..... Respondent
                           Through:      Mr.Satish Aggarwal, Advocate
        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA
                                    ORDER

: SUNITA GUPTA, J.

1. By virtue of this application under Section 439 of Cr.PC the petitioner

is seeking regular bail in Sessions Case No.47A/12 DRI vs. Paramjit Singh

Gulati & Atul Aggarwal.

2. The case of Directorate of Revenue Intelligence ['DRI'] in brief is

that while acting upon a secret intelligence regarding a Delhi based drug

syndicate engaged in export of narcotic drugs by way of concealment

thereof, the DRI officers seized a consignment of about 151.980 kg of white

colour crystal powder from the area of Air Cargo, IGI Airport, New Delhi

on 18.07.2012. The above consignment of white colour crystal powder was

being exported to Malaysia and it was contained in three particular

cartons/boxes bearing nos.19, 21 and 21, which further contained 38 cloth

bags each weighing around 1.02 kg each and was a part of a big

consignment consisting of 24 such corrugated boxes/cartons contained in

three pallets. The secret information was that a consignment of drugs is

being exported by concealment thereof in various handicraft items like lady

purse, hina powder and imitation jewellery etc. and the above seized cloth

bags i.e. 38 cloth each contained in the above three cartons were found to be

having the marking of Neha Rachni Mehandi.

3. The further investigation led the DRI team to the co-accused -

Paramjit Singh Gulati and the present applicant/accused - Atul Aggarwal, as

it was found that the above export consignment was being exported by the

above co-accused Paramjit Singh Gulati, as per the shipping documents

seized in this case. The DRI officers had conducted simultaneous searches at

various premises of both the accused persons and from the residential

premises at G-48, Man Sarovar Garden, New Delhi of co-accused - Paramjit

Singh Gulati, they had recovered two different pouches marked as EPH and

PSE weighing 25.5 gms (gross weight) and 24.5 gms (gross weight)

respectively containing some white colour crystalline powder, a cash

amount of Rs.1,57,30,000/-; 13 mobile phones of various brands and some

documents. Two godowns of the above main/co-accused situated at G-41

(basement), Bali Nagar, New Delhi and at Khasra No.755/1/1 at Mundka

Village, Delhi were also raided and from the first godown also 215 gms of

while colour crystalline power and further a cash amount of Rs.3,50,000/-

was recovered. From the second godown, some solutions of rose water,

liquid glucose, etc. with suspected Ketamine1 dissolved therein were

recovered with drums of refined glycerine, ethyl acetate, etc.

4. As far as the petitioner - Atul Aggarwal is concerned, the recovery of

five (5) cheque books of various accounts, some digital storage media, three

mobile phones, one laptop and 44 rubber stamps of various firms was

effected from his residence at D-99, Gali No.5, South Ganesh Nagar, New

Delhi and one G-Card ID was also recovered from his other residence at

178, 1st Floor, Street No.8, West Guru Angad Nagar, New Delhi and 20

HDPE bags containing some mehandi powder, glass bangles, mirrors,

agarbattis, ladies pouch purses, incense powder and vanity cases etc. was

also effected from his godown premises situated at A-36, Kundan Nagar,

Delhi.

5. During the tests conducted by the CRCL, New Delhi subsequently,

the samples taken out of the above seizure of suspected Ketamine effected

from the Airport, Cargo Complex were found positive for ketamine

[Ketamine, categorized as a "dissociative anesthetic," is used in powdered or liquid form as an anesthetic, usually on animals. It can be injected, consumed in drinks, snorted, or added to joints or cigarettes. Ketamine was placed on the list of controlled substances. Short- and long- term effects include increased heart rate and blood pressure, nausea, vomiting, numbness, depression, amnesia, hallucinations and potentially fatal respiratory problems. Ketamine users can also develop cravings for the drug. At high doses, users experience an effect referred to as "K- Hole," an "out of body" or "near-death" experience. Due to the detached, dreamlike state it creates, where the user finds it difficult to move,

hydrochloride. The samples taken from the white crystalline powder

recovered from the two bags from the residence of co-accused at

Mansarovar Garden, Delhi have been found positive for ephedrine

hydrochloride and pseudoephedrine hydrochloride, the samples taken from

the first godown of the co-accused was also found positive for ephedrine

hydrochloride and the samples taken from the above rose water solutions

etc. found in the second godown of the above co-accused was also found

positive for ketamine hydrochloride.

6. The bail of the petitioner is being sought on the ground that no

recovery of any contraband substance has been effected from his possession

or at his instance. Neither he is the owner of the contraband in question nor

the supplier of the same nor did he has anything to do with the recipient of

the contraband in question. He was not to receive any share in the dealing of

drugs. He is only engaged in the work of export as he is a G-Card holder of

customs and doing the work of custom house agent. He had acted as a

freight forwarder in processing of paper work for export of consignment as

per the directions of exporters. The godown and premises from where the

alleged recoveries were effected do not belong to the petitioner/accused nor

he has any concern with such recoveries. Till 2001, dealing in ketamine was

ketamine has been used as a "date-rape" drug - dissociative anesthetic: a drug that distorts perception of sight and sound and produces feelings

not an offence and no provisions of the NDPS Act was attracted. The

officers of DRI tortured and forced the petitioner to write a statement as per

their will and the said statement was retracted at the earliest available

opportunity. The co-accused has not even mentioned a word against the

petitioner. The petitioner is languishing in jail since July, 2012 for no fault

of his own. In similar circumstances, Court has granted bail to co-accused -

Suresh Kumar Sharma, as such, it is prayed that the petitioner also deserves

to be released on bail.

7. The application is opposed by Mr Satish Aggarwal, counsel for DRI

on the ground that the petitioner is trying to misguide the Court by

presenting himself to be only a freight forwarder. In his voluntary statement

recorded under Section 67 of the NDPS Act, the petitioner has admitted his

role in the export of contraband to various countries. He himself has

submitted the list of exports made by him. He also confirmed the fact that he

used to receive Rs.2 to Rs.3 lacs per consignment for his involvement in the

export of contraband. The role of the petitioner was to procure the material

for concealment and thereafter concealing the contraband therein which

ultimately was exported to various countries. The recovery of concealment

material i.e. mehandi powder, glass bangles, mirrors, agarbattis, ladies

of detachment (dissociation) from the environment and self.]

pouch purses, incense powder and vanity cases from the premises under

control of the petitioner was similar to the concealment material used for

concealment of 151.98 kg of ketamine which was placed under seizure at the

IGI Airport. The recovery of IECs of various firms from the premises of the

petitioner and his admission that the same were being used by him and his

co-accused for export of contrabands clearly establishes his role in the

offence. His role is further established from his revelation about the export

of 300 kgs of Ketamine concealed in the consignment of Tert Butanol.

Based on revelations by the petitioner, the Canadian authorities were alerted

which resulted in recovery of the contrabands at Canada. The recovery of

the documents pertaining to the said consignment from the custody of the

petitioner reinforces his involvement in commission of crime. The petitioner

in his statement also admitted that for the purpose of export of 151.980 kgs

of Ketamine he had forged letter from ING Vysya Bank Limited certifying

bank account of Sagar Impex / Fabricated Income Tax return, verification

for (ITR - V) of Rahul Raj, Proprietor of M/s Sagar Impex / fabricated

balance sheet for the year ending 30.03.2011 of Mr Rahul Raj and generated

fake registration certificates of Department of Labour, Govt. of NCT of

Delhi and forged bank statements of Sagar Impex. The petitioner had

admitted that he himself forged the said documents as the same were

required for entering of AD code (authorized dealer) for Custom Clearance

at Air Cargo Complex, Delhi. The admissions made by the petitioner in his

statement and his co-accused have also resulted in seizure of one more

consignment of 300 gms of Ketamine dissolved in rose water at the godown

premises which was also to be exported by them. This clearly establishes

the fact that he (the petitioner) was knowingly concerned in acquiring,

possessing, keeping, transporting, concealing, sale and purchase and illegal

export of contraband and psychotropic substances and by act of omission

and commission on his part has committed various offences. Regarding the

plea of the petitioner that till 2011 Ketamine was not a controlled substance

under NDPS Act, 1985 it was submitted that after pronouncement of

Supreme Court's Judgment in Union of India and another vs. Sanjeev V.

Deshpande, [Crl. Appeal No.660 of 2007, decided on 12.08.2014], this

contraband is now covered under NDPS Act and, therefore, the petitioner is

not entitled to be released on bail.

8. As per the case of prosecution, pursuant to searches made by the

officers of DRI, 20 HDPE bags containing concealing materials like

mehandi powder, glass bangles, mirrors, agarbattis, ladies pouch purses,

incense powder and vanity cases etc were recovered from the godown

premises of the petitioner. It is not in dispute that the consignment was being

exported through the petitioner and G-Card ID was also recovered from his

other residence. His statement under Section 67 of NDPS Act was recorded

which is admissible in evidence and if proved to be made voluntarily can

even be the basis of conviction wherein it is disclosed by him that the

consignment of Ketamine procured by the co-accused Paramjit Singh Gulati

was first sent to the godown of the petitioner at A-36, Kundan Nagar, Delhi

where contraband was concealed and repacked. He has also stated that he

used to charge a hefty amount of Rs.2 lac to Rs.3 lac for sending each of

such consignment. Besides that, various shipping documents for export of

the consignment prepared in the name of M/s Sagar Impex at New Delhi and

IEC Codes were recovered which were found to be fake. It was also

disclosed in the statement that by the same mode, earlier 1,000 kgs of

contraband was exported and one of their consignments declared to be chat

masala, exported to Canada, was intercepted by the Canadian Authorities

and a further consignment of 300 kg of Ketamine to Canada was also sent.

Forged rubber stamps of various firms were also recovered from the

residential premises of the petitioner/accused which reflects his involvement

in such cases of export of consignment by using fake stamps of different

firms/companies.

9. It is the case DRI that pursuant to an information received from the

accused persons, the DRI officials had passed the information to Canadian

Authorities and they have seized the consignment of about 300 kgs of

Ketamine.

10. Moreover, the effect of retraction of the statement made under Section

67 of the NDPS Act will be required to be seen during the trial of the case.

Various judgments relied upon by counsel for the petitioner / accused are on

the peculiar facts and circumstances of each case from which the petitioner

does not derive any benefit. Furthermore, the position of law has been

materially altered in view of the pronouncement of judgment in Sanjeev V.

Deshpande (supra).

11. Keeping in view the totality of facts and circumstances, coupled

with the fact that the case is at its initial stage as only charge has been

framed and prosecution is yet to lead its evidence, at this juncture, I do not

deem it appropriate to release the petitioner on bail. The application is

accordingly dismissed.

It is, however, made clear that the observations made hereinabove will

not affect the Trial which should be conducted on its own merit.

The application stands disposed of accordingly.

(SUNITA GUPTA) JUDGE JUNE 30, 2015/rd