Delhi High Court
Ikechukwu Chukwubuikem Stanley vs Narcotics Control Bureau on 20 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 10th August, 2018
Decided on: 20th August, 2018
+ BAIL APPLN. 2343/2017
IKECHUKWU CHUKWUBUIKEM STANLEY ..... Petitioner
Represented by: Mr.Vikas Gautam, Advocate
versus
NARCOTIC CONTROL BUREAU ..... Respondent
Represented by: Mr.P.C.Aggarwal, Advocate
+ BAIL APPLN. 503/2018
ANAND KUMAR THAKUR ..... Petitioner
Represented by: Mr.K.G.Sharma and Mr.R.K.Goel,
Advocates
versus
NAROTIC CONTROL BUREAU ..... Respondent
Represented by: Mr.P.C.Aggarwal, Advocate
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By these two petitions, the petitioners seek bail in complaint case
No.SC/225/17 titled as NCB Vs. Ikechukwu Chukwubuikem Stanley & Ors.
pending in the Court of Special Judge, NDPS Act, at Patiala House.
2. Learned counsel for the petitioner Ikechukwu Chukwubuikem Stanley
states that from the facts even on the face of the prosecution case, the
petitioner cannot be said to be in conscious possession of the narcotics
drugs. No recovery has been made at the instance of the petitioner, further
Bail Appn.Nos.2343/2017 & 503/2018 Page 1 of 12
the parcel was given to the petitioner by the co-accused to be booked for
Spain. He further states that in terms of the decision of the Supreme Court
reported as (2015) 6 SCC 222 Mohan Lal Vs. State of Rajasthan and a
decision of this Court reported as 2005 (3) JCC (Narcotic) 220 Kamaljeet
Singh Vs. H.K.Pandey, the petitioner is entitled to grant of bail pending trial.
3. Learned counsel for petitioner Anand Kumar Thakur states that the
petitioner is running a courier agency and only to facilitate its customer, he
provided the ID of his staff which cannot in any way be treated as conscious
possession of the contraband. There is no previous involvement of the
petitioner and he has been falsely implicated.
4. As per the complaint filed by the respondent, the case of the
prosecution is that on 28th January, 2017, a secret information was received
from DHL, Rama Road, Kirti Nagar, New Delhi that one parcel booked
under airway bill No.5112788656 destined for Spain is lying there and is
suspicious. On examination of the parcel, it was found containing 575
grams of heroin concealed in the shock absorber (auto parts). During
inquiry, ID documents were looked into and it was found that the courier
company i.e. DTDC Courier Company was owned by petitioner Anand
Kumar Thakur who disclosed that the parcel in question was booked by
Ikechukwu Chukwubuikem Stanley on the basis of aadhar card of one
Munna Ansari and that ID documents of his staff were affixed with the
parcel in question on the instructions of Anand Kumar Thakur.
5. Thereafter, petitioner Ikechukwu Chukwubuikem Stanley was
intercepted and was questioned as to who disclosed that the parcel was given
to him by co-accused Edwin Emeka Igbokwe whereafter Edwin was
intercepted and his statement was also recorded. Search of house of Edwin
Bail Appn.Nos.2343/2017 & 503/2018 Page 2 of 12
was also conducted where similar type of shock absorbers were found which
were used for concealing the recovered heroin in the parcel in question,
besides the packing box and other incriminating items.
6. As per the complaint and the status report, petitioner Ikechukwu
Chukwubuikem Stanley was earlier also arrested and convicted in FIR
No.68/2008 under Sections 21 and 29 of the NDPS Act read with Section 14
of the Foreigners Act at PS Special Cell, New Delhi whereafter he had
entered India with another name and committed the present offence. As per
the complaint, petitioner Ikechukwu Chukwubuikem Stanley was earlier
arrested in the name of Stanely Chubuki.
7. The plea of learned counsel for petitioner Ikechukwu Chukwubuikem
Stanley that the petitioner was not in conscious possession of the contraband
cannot be accepted for the reason Edwin who gave the parcel to petitioner
Ikechukwu Chukwubuikem Stanley was in Delhi only and was thus not
required to use Ikechukwu Chukwubuikem Stanley for the purposes of
sending the parcel. Even as per his statement on 24 th January, 2017 when
the booking of the parcel was not showing on the DTDC Website and Edwin
having called petitioner Ikechukwu Chukwubuikem Stanley, he went to the
DTDC office to know why the parcel was not showing on its website where
he was told that he will have to pay more money as the parcel was heavy.
8. While dealing with the concept of conscious possession, Supreme
Court in Mohan Lal (supra) held as under:-
"16. Coming to the context of Section 18 of the NDPS Act, it
would have a reference to the concept of conscious
possession. The legislature while enacting the said law was
absolutely aware of the said element and that the word
"possession" refers to a mental state as is noticeable from
Bail Appn.Nos.2343/2017 & 503/2018 Page 3 of 12
the language employed in Section 35 of the NDPS Act. The
said provision reads as follows:
"35.Presumption of culpable mental state.--(1) In
any prosecution for an offence under this Act,
which requires a culpable mental state of the
accused, the court shall presume the existence of
such mental state but it shall be a defence for the
accused to prove the fact that he had no such
mental state with respect to the act charged as an
offence in that prosecution.
Explanation.--In this section 'culpable mental
state' includes intention, motive, knowledge, of a
fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said
to be proved only when the court believes it to
exist beyond a reasonable doubt and not merely
when its existence is established by a
preponderance of probability."
17. On a perusal of the aforesaid provision, it is plain as
day that it includes knowledge of a fact. That apart, Section
35 raises a presumption as to knowledge and culpable
mental state from the possession of illicit articles. The
expression "possess or possessed" is often used in
connection with statutory offences of being in possession of
prohibited drugs and contraband substances. Conscious or
mental state of possession is necessary and that is the
reason for enacting Section 35 of the NDPS Act.
18. In Noor Aga v. State of Punjab, the Court noted
Section 35 of the NDPS Act which provides for presumption
of culpable mental state and further noted that it also
provides that the accused may prove that he had no such
mental state with respect to the act charged as an offence
under the prosecution. The Court also referred to Section 54
Bail Appn.Nos.2343/2017 & 503/2018 Page 4 of 12
of the NDPS Act which places the burden to prove on the
accused as regards possession of the contraband articles on
account of the same satisfactorily. Dealing with the
constitutional validity of Sections 35 and 54 of the NDPS
Act, the Court ruled thus: (SCC p. 449, para 55)
"55. The provisions of Section 35 of the Act as
also Section 54 thereof, in view of the decisions of
this Court, therefore, cannot be said to be ex facie
unconstitutional. We would, however, keeping in
view the principles noticed hereinbefore, examine
the effect thereof vis-à-vis the question as to
whether the prosecution has been able to
discharge its burden hereinafter."
And thereafter proceeded to state that: (SCC p. 450, paras
58-59)
"58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental
state on the part of the accused as also place the
burden of proof in this behalf on the accused; but
a bare perusal of the said provision would clearly
show that presumption would operate in the trial
of the accused only in the event the circumstances
contained therein are fully satisfied. An initial
burden exists upon the prosecution and only when
it stands satisfied, would the legal burden shift.
Even then, the standard of proof required for the
accused to prove his innocence is not as high as
that of the prosecution. Whereas the standard of
proof required to prove the guilt of the accused on
the prosecution is 'beyond all reasonable doubt'
but it is 'preponderance of probability' on the
accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is
Bail Appn.Nos.2343/2017 & 503/2018 Page 5 of 12
possession of contraband by the accused cannot
be said to have been established.
59. With a view to bring within its purview the
requirements of Section 54 of the Act, element of
possession of the contraband was essential so as
to shift the burden on the accused. The provisions
being exceptions to the general rule, the
generality thereof would continue to be operative,
namely, the element of possession will have to be
proved beyond reasonable doubt."
19. In Bhola Singh v. State of Punjab , the Court, after
referring to the pronouncement in Noor Aga concurred with
the observation that only after the prosecution has
discharged the initial burden to prove the foundational
facts, then only Section 35 would come into play. While
dislodging the conviction, the Court stated: (Bhola Singh
case SCC pp. 655-56, para 11)
"11. ... it is apparent that the initial burden to
prove that the appellant had the knowledge that
the vehicle he owned was being used for
transporting narcotics still lay on the prosecution,
as would be clear from the word 'knowingly', and
it was only after the evidence proved beyond
reasonable doubt that he had the knowledge
would the presumption under Section 35 arise.
Section 35 also presupposes that the culpable
mental state of an accused has to be proved as a
fact beyond reasonable doubt and not merely
when its existence is established by a
preponderance of probabilities. We are of the
opinion that in the absence of any evidence with
regard to the mental state of the appellant no
presumption under Section 35 can be drawn. The
only evidence which the prosecution seeks to rely
on is the appellant's conduct in giving his
Bail Appn.Nos.2343/2017 & 503/2018 Page 6 of 12
residential address in Rajasthan although he was
a resident of Fatehabad in Haryana while
registering the offending truck cannot by any
stretch of imagination fasten him with the
knowledge of its misuse by the driver and others."
20. Having noted the approach in the aforesaid two cases,
we may take note of the decision in Dharampal
Singh v. State of Punjab, when the Court was referring to
the expression "possession" in the context of Section 18 of
the NDPS Act. In the said case opium was found in the
dickey of the car when the appellant was driving himself
and the contention was canvassed that the said act would
not establish conscious possession. In support of the said
submission, reliance was placed on Avtar Singh v. State of
Punjab and Sorabkhan Gandhkhan Pathan v. State of
Gujarat. The Court, repelling the argument, opined thus:
(Dharampal Singh case SCC pp. 613-15, paras 12-13 & 15-
16)
"12. We do not find any substance in this
submission of the learned counsel. The appellant
Dharampal Singh was found driving the car
whereas appellant Major Singh was travelling
with him and from the dickey of the car 65 kg of
opium was recovered. The vehicle driven by the
appellant Dharampal Singh and occupied by the
appellant Major Singh is not a public transport
vehicle. It is trite that to bring the offence within
the mischief of Section 18 of the Act possession
has to be conscious possession. The initial burden
of proof of possession lies on the prosecution and
once it is discharged legal burden would shift on
the accused. Standard of proof expected from the
prosecution is to prove possession beyond all
reasonable doubt but what is required to prove
innocence by the accused would be
preponderance of probability. Once the plea of
Bail Appn.Nos.2343/2017 & 503/2018 Page 7 of 12
the accused is found probable, discharge of initial
burden by the prosecution will not nail him with
offence. Offences under the Act being more
serious in nature higher degree of proof is
required to convict an accused.
13. It needs no emphasis that the expression
'possession' is not capable of precise and
completely logical definition of universal
application in the context of all the statutes.
'Possession' is a polymorphous word and cannot
be uniformly applied, it assumes different colour
in different context. In the context of Section 18 of
the Act once possession is established, the
accused who claims that it was not a conscious
possession has to establish it because it is within
his special knowledge.
***
15. From a plain reading of the aforesaid it is
evident that it creates a legal fiction and presumes
the person in possession of illicit articles to have
committed the offence in case he fails to account
for the possession satisfactorily. Possession is a
mental state and Section 35 of the Act gives
statutory recognition to culpable mental state. It
includes knowledge of fact. The possession,
therefore, has to be understood in the context
thereof and when tested on this anvil, we find that
the appellants have not been able to satisfactorily
account for the possession of opium.
16. Once possession is established the court can
presume that the accused had culpable mental
state and have committed the offence. In
somewhat similar facts this Court had the
occasion to consider this question in Madan
Lal v. State of H.P., wherein it has been held as
follows: (SCC p. 472, paras 26-27)
'26. Once possession is established, the
person who claims that it was not a
conscious possession has to establish it,
because how he came to be in possession is
within his special knowledge. Section 35 of
the Act gives a statutory recognition of this
position because of the presumption
available in law. Similar is the position in
terms of Section 54 where also presumption
is available to be drawn from possession of
illicit articles.
27. In the factual scenario of the present
case, not only possession but conscious
possession has been established. It has not
been shown by the accused-appellants that
the possession was not conscious in the
logical background of Sections 35 and 54 of
the Act.'"
21. From the aforesaid exposition of law it is quite vivid
that the term "possession" for the purpose of Section 18 of
the NDPS Act could mean physical possession with animus,
custody or dominion over the prohibited substance with
animus or even exercise of dominion and control as a result
of concealment. The animus and the mental intent which is
the primary and significant element to show and establish
possession. Further, personal knowledge as to the existence
of the "chattel" i.e. the illegal substance at a particular
location or site, at a relevant time and the intention based
upon the knowledge, would constitute the unique
relationship and manifest possession. In such a situation,
presence and existence of possession could be justified, for
the intention is to exercise right over the substance or the
chattel and to act as the owner to the exclusion of others."
9. The Supreme Court thus held that there should be animus and the
mental intent to show and establish possession. In the present case,
petitioner Ikechukwu Chukwubuikem Stanley brought the articles and
sought to book the same on the ID of one Munna Ansari knowing fully that
the articles belonged to Edwin. It is thus evident that the petitioner was
conscious that a non-genuine ID was required to send the courier. At this
stage, from the evidence on record, this Court cannot infer that the petitioner
Ikechukwu Chukwubuikem Stanley had no conscious possession of the
contraband.
10. Further Section 37 of the NDPS Act reads as under:-
"37. Offences to be cognizable and non-bailable - (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section 27A and
also for offences involving commercial quantity shall be
released on bail or on his own bond unless ---
(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application,
the court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations under
the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force, on granting of bail."
11. Petitioner Ikechukwu Chukwubuikem Stanley having already been
convicted and deported thereafter for an earlier offence under Sections 21
and 29 of the NDPS Act, this Court cannot arrive at a satisfaction that there
is no likelihood of the petitioner in not indulging in this activity again or in
view of the facts noted above that he is not guilty of the offence. Hence this
Court finds no ground to grant bail to Ikechukwu Chukwubuikem Stanley.
12. As regards petitioner Anand Kumar Thakur is concerned, even as per
the case of the prosecution, the petitioner is running a courier agency and
petitioner's company received pre-packed goods purportedly shock
absorbers. Both the cartons contained similar type of shock absorbers and
on cutting open only concealed contraband therein was found. In order to
increase the business, Anand Kumar Thakur also offered to lend the ID of a
staff which he would not have done, if he had known that it contained
contraband. Prima facie, thus from the manner of concealment it cannot be
said that Anand Kumar Thakur had conscious possession of the contraband
in terms of the law laid down by the Supreme Court in Mohan Lal (supra).
Further the rate charged by Anand Kumar Thakur for sending the courier
also does not show that he was conscious that a contraband was being sent
and that he charged enhanced fee.
13. Consequently, this Court deems it fit to grant bail to Anand Kumar
Thakur. It is, therefore, directed that Anand Kumar Thakur be released on
bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety
bonds of the like amount to the satisfaction of the learned Trial Court,
further subject to the condition that he will not leave the country without the
prior permission of the Court concerned and in case of change of residential
address, he will intimate the same to the Court concerned by way of an
affidavit.
14. Bail Appln.No.2343/2017 is dismissed and Bail Appln.No.503/2018
is disposed of.
15. Order dasti.
(MUKTA GUPTA)
JUDGE
AUGUST 20, 2018
mamta
