Delhi High Court
Nzube Christian Asika vs Ncb on 7 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order Reserved on 01st November,2017
Order pronounced on 7th November, 2017
+ BAIL APPLN. 407/2017
NZUBE CHRISTIAN ASIKA ......Petitioner
Through: Mr. J.S. Kushwaha, Advocate.
Versus
NCB .....Respondent
Through: Mr. Rajesh Manchanda with Mr. Rajat
Manchanda, Advocates.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By way of the present petition filed under Section 439 of the Code
of Criminal Procedure (hereinafter referred "Cr.PC."), the
petitioner seeks grant of Regular Bail in SC No. 8897/2016 under
Sections 21 (c), 23(c) read with Section 50-A of the NDPS Act.
2. The case of the prosecution is that on 17.06.2013, Deputy Director
General, Narcotics Control Bureau, New Delhi received a
communication from serious Organized Crime Agency about the
information received from British Agencies that a parcel
originating from Columbia with destination of India via DHL
Couriers bearing AWB reference 91475848323 has been
intercepted at London Airport on the suspicion of being prohibited
drugs. Examination of the parcel confirms the presence of
prohibited drugs and the parcel was sent to India to be received by
the NCB under controlled Delivery in accordance with the
provisions of Section 50-A of the NDPS Act. Mr. C.S.K. Singh,
IO was directed by Sh. R.K.Singh, Superintendent to receive the
controlled delivery parcel and thereafter to handover the said parcel
to DHL officials. The parcel was handed over to the DHL. Mr.
Sandeep Kumar, IO was directed to hold surveillance and liaison at
DHL Office. On receipt of information that one person was likely
to come to DHL office for taking the delivery of the said parcel,
team was deputed, the petitioner at 01.10 pm took delivery of the
said parcel and he was intercepted by the team. On personal search
of the petitioner contraband was recovered from the parcel and
after complying with the due process of law petitioner was
arrested. On search of the petitioner he was found in possession of
three mobile phones and on checking of the said mobiles one of
them was found to contain a message relating to the airway bill of
the parcel in question.
3. Mr. J.S. Kushwaha, learned counsel for the petitioner contended
that the petitioner has been falsely implicated in the present case;
that there is a clear violation of mandatory provisions of law which
casts shadow of doubt on the prosecution story; that the petitioner
is having clean antecedents; that the petitioner is not a previous
convict and there is no other criminal record available against the
petitioner; that there is no chance of petitioner for absconding or
tampering with the prosecution evidence. In support of his
contention learned counsel for the petitioner relied on the case of
Harish Joshi Vs DRI : 2009(3) C.C. Cases (HC) 198 and
Edwards Khimani Kamau Versus Narcotic Drugs and
Psychotropic Substances Act, 1985 : 2015 (8) LRC 313 (Del).
4. Per Contra, Mr. Rajesh Manchanda, advocate for the respondent
opposed the bail application and contended that the petitioner is
involved in the commission of a serious offence and had been
caught by the officials of the respondent with the seized contraband
of 185 grams of cocaine; that the arrest of the petitioner was for the
violation of the commercial quantity of contraband, therefore, he is
not entitled for bail in view of the provisions of Section 37 of the
NDPS Act; that there is no ambiguity or irregularity in drawing the
samples or sending the samples for laboratorial analysis; that there
will be likelihood of the petitioner to abscond or remain indulge in
such type of offences in future as well.
5. I have heard the learned counsel for the parties and perused the
material on record.
6. In Kalyan Chandra Sarkar vs. Rajesh Ranjan : 2004 (7) SCC
528), the Apex court has laid down the principles of granting or
refusing bail and held as under:
"The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner
and not as a matter of course. Though at the
stage of granting bail a detailed examination of
evidence and elaborate documentation of the
merit of the case need not be undertaken, there
is a need to indicate in such orders reasons for
prima facie concluding why bail was being
granted particularly where the accused is
charged of having committed a serious offence.
Any order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail; they
are:
a. The nature of accusation and the severity of
punishment in case of conviction and the nature
of supporting evidence
b. Reasonable apprehension of tampering with
the witness or apprehension of threat to the
complainant.
c. Prima facie satisfaction of the court in
support of the charge."
7. From the perusal of the record it transpires that the petitioner was
apprehended from the spot by the raiding team after he took the
delivery of the alleged parcel which contained 185 grams of
cocaine. At the time of the search, the respondents have complied
with the provisions envisaged under the statue and served him
notice under Section 50 of the NDPS Act and also conducted the
search in presence of independent witnesses and from 24.06.2013
he is in custody. The case is at the stage of prosecution evidence
and the prosecution has already examined 19 witnesses out of 21
witnesses and trial is on its last legs. Further the charged offence is
serious in nature which is punishable with imprisonment which
may extend to twenty years. Moreover, the possibility of the
petitioner fleeing from justice being a foreign national cannot be
ruled out.
8. Keeping in view the principle laid by the Apex Court,
aforementioned facts and circumstances, as well as taking into
consideration the gravity of the offences alleged, this court does
not deem it a fit case to grant bail to the petitioner.
9. Accordingly, the present petition is dismissed.
10. Before parting with the above order, it is made clear that
observations made in the order shall have no impact on the merit of
the case.
SANGITA DHINGRA SEHGAL, J
NOVEMBER 07, 2017
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