Athar Parvez vs Narcotics Control Bureau
2016 Latest Caselaw 4198 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         DECIDED ON : 31st MAY, 2016

+                       BAIL APPLN. 1914/2015
       ATHAR PARVEZ                                        ..... Petitioner
                             Through :   Mr.Yogesh Saxena, Advocate with
                                         Mr.Sikandar A.Khan, Advocate.
                             versus
       NARCOTICS CONTROL BUREAU                            ..... Respondent
                             Through :   Mr.Rajesh Manchanda, Advocate
                                         with Mr.Rajat Manchanda, Advocate.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

1. The petitioner seeks regular bail under Section 439 Cr.P.C. in case FIR No.25/13 registered under Sections 22/23/9A/25A/25/29 NDPS Act. Status report / response is on record.

2. I have heard the learned counsel for the parties and have examined the file. It is urged that the petitioner is in custody since 22.08.2013. CRCL, New Delhi, in its report dated 19.09.2013, could not ascertain the presence of Methaqulone in the sample drawn by the Investigating Agency. The sample, however, tested positive in respect of pseudoephedrine hydrochloride (Annexure P-2). On the application filed by NCB for sending the duplicate set of samples to CFSL Hyderabad, the samples were sent to CFSL Hyderabad. As per its report dated 10.01.2014

the samples were tested positive for the presence of methamphetamine (Annexure P-3). It is further urged that pursuant to order dated 11.09.2014, fresh samples were drawn from the case property and sent to CRCL, New Delhi on 27.10.2014. As per this report dated 28.11.2014, the samples (alleged to be belonging to the petitioner) tested positive for methamphetamine hydrochloride (Annexure P-4). Learned counsel vehemently contended that the 'samples' sent for examination were tempered with. Conflicting and inconsistent reports have been given by CRCL, New Delhi and CFSL, Hyderabad. In view of these contradictory reports, the petitioner cannot be convicted for the charged offences and provision of Section 33 NDPS are not attracted. Pseudoephedrine is a controlled substance and its possession is punishable under Section 25A NDPS Act where no minimum sentence is prescribed for. Reliance has been placed on 'Ram Narayan vs. State', 121(2005) DLT 166; Bail Application No.1461/2005 'Ramesh Kumar vs. NCB'; Bail Application No.1202/2013 'Niranjan Jayanti Lal Shah vs. DRI', and 'Shahid Khan vs. DRI', 2001 Crl.L.J. 3183. Learned counsel for the respondent urged that considering the gravity of the offence, no sufficient grounds exist to grant bail to the petitioner.

3. On perusal of the Trial Court record, it reveals that vide detailed order dated 28.01.2016 charge under Sections 25(A) and 22(C) NDPS Act has been framed against the petitioner and co-accused Viqar Ahmed. The petitioner along with others has already been charged under Section 29 read with 8 & 9A of the Act. It is relevant to note that at the time of arguments on charge, learned counsel for the petitioner gave 'no objection' to the framing of charge. Co-accused Amarjeet Singh for the

detailed reasons was discharged of the offence. All these reports were available with the Trial Court at the time of consideration of charge which was not contested by the petitioner. When the samples were first sent to CRCL, New Delhi (out of the recovered contraband from a bag in Santro car), it tested positive for pseudoephedrine hydrochloride. However, it did not test positive for methaqulone. In its report, the Chemical Examiner opined that presence of methaqulone could not be ascertained for want of characterization facilities. Apparently, CRCL, Delhi did not give final report regarding absence of methaqulone. NCB, thereafter, moved an application to send duplicate samples taken from the said bag to CFSL, Hyderabad for further analysis and it was allowed vide order dated 17.02.2013. The said order was never challenged. As per report 10.01.2014 received from CFSL, Hyderabad, the duplicate samples tested positive for methamphetamine. Again, Amrinder Kumar (since discharged) moved an application on 11.09.2014 for retesting. On 27.10.2014 samples were drawn from both the case properties i.e. bag recovered from the Santro car and parcel recovered from the accused Amrinder and sent to CRCL, New Delhi for examination. As per report dated 28.11.2014 sample taken from car (of the petitioner) tested positive for 'methamphetamine hydrochloride'.

4. Apparently, impact of these three chemical reports on record is to be ascertained by the Trial Court after getting evidence of the concerned witnesses during trial. At this stage, it cannot be inferred with certainty that the article recovered from the appellant and co-accused Viqar Ahmed was a control substance. Charge has already been framed and the respondent is to examine material witnesses to substantiate its case. At this stage, it cannot be presumed that the samples were tempered with. It is a matter of trial.

Since respondent's case is about the recovery of commercial quantity of the contraband, prima facie, embargo under Section 37 NDPS Act is attracted.

5. Considering the gravity of the offence and huge quantity recovered from the petitioner and at this instance, no sufficient ground for grant of bail, particularly when material prosecution witnesses are yet to be examined.

6. The bail application is dismissed.

(S.P.GARG) JUDGE MAY 31, 2016 / tr