Delhi High Court
Sonia Shamrao Naik Gaonkar vs Narcotics Control Bureau on 24 August, 2020
SINDHU KRISHNAKUMAR
24.08.2020 23:27
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th August, 2020
+ BAIL APPLN. 1182/2020 & CRL.M.A. 7393/2020, 9089/2020
SONIA SHAMRAO NAIK GAONKAR ..... Applicant
Through: Mr. Raghav Sharma, Mr. Salvador
Santosh Rebello, Mr. Ishant Arora &
Ms. Arzu Paul, Advocates
(M-9823120280).
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through: Mr. P.C. Aggarwal, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been held through video conferencing.
2. The Applicant in the instant case seeks interim bail in view of the
prevalent pandemic in the jail. The Applicant is a 24 year old girl who was
arrested on 22nd February, 2018 in Sessions Case No. 267/2018 under
Sections 8, 21, 22, 27A and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter, 'NDPS Act'). She has been in custody for
more than two years. She is a girl hailing from Goa, who was arrested from
the Hazrat Nizamuddin Railway Station.
3. It is the case of the Narcotics Control Bureau (hereinafter 'NCB') that
she was arrested when she was found in possession of 600 gm of
Methamphetamine. It is also stated that from the disclosures made by her, two
other co-accused were also intercepted and further quantity of 180 gm of
Signature Not Verified
Digitally Signed
Signing Date:24.08.2020 22:31
cocaine was recovered.
4. The Applicant seeks bail on the ground of deteriorating conditions in
the Mandoli Jail, where it is stated that there is a severe spread of the
pandemic.
5. Notice was issued in this petition on 9th June, 2020. The grandfather of
the Applicant had also filed a bail application being Bail Application No.
351/2020, which is also pending. The Status Report was called for along with
the nominal roll.
6. Since the Applicant is a permanent resident of Goa, where her family
also resides, on 13th July, 2020, the Court had directed that an affidavit be
filed by the family members as to how the Applicant would join the trial, in
case interim bail is granted to her. The mother of the Applicant has filed an
affidavit dated 17th August, 2020 stating that though they are residents of Goa,
the Applicant will ensure advance travel booking for attending each and every
date of hearing before the Trial Court and she would also be present even for
video conferencing hearings. On 13th July, 2020, the Applicant was also asked
to join the proceedings from jail. The grandfather of the Applicant who had
filed the application for regular bail had also joined the video conferencing
hearing.
7. Today, Mr. Sharma, ld. counsel for the Applicant submits that the
statement made by the Applicant under Section 67 has already been retracted
and the same cannot be made the basis for continuing to keep the Applicant in
jail. He submits that the Call Data Records (CDRs) which are placed on
record show that there is no communication between the Applicant and the
other co-accused. Ld. counsel also relies upon the decision of the Court in
Sikodh Mahto and Ors. v. State [262 (2019) DLT 74, Paras 50 to 51] to
Signature Not Verified
Digitally Signed
Signing Date:24.08.2020 22:31
argue that the mandatory condition under Section 50 of the NDPS Act has not
been fulfilled. He also submits that only a designated officer could initiate the
hearing and even at the time of seizure, which has allegedly taken place in
Hazrat Nizamuddin Railway Station, no independent witness was present at
the time of arrest or at the time of seizure. This shows that there is a clear
doubt as to whether the recovery was in fact made from the Applicant.
8. On the other hand, Mr. P.C. Aggarwal, ld. counsel appearing for the
NCB submits that the Applicant is in good health and in fact jail has proved to
be a safe place for the Applicant. He objects to the grant of interim bail on the
ground that commercial quantities of 600gms Methamphetamine has been
recovered from the Applicant's possession. He relies upon the presumption in
Sections 67, 35 and 54 of the NDPS Act to argue that the benefit of doubt
cannot be given to the Applicant.
9. Mr. Aggarwal, ld. counsel submits that there are two witnesses whose
names are mentioned in the seizure memo. However, Mr. Sharma, ld. counsel
submits that the two witnesses are officials of Railway Police and they are not
independent witnesses.
10. This Court has perused the pleadings and status reports on record. A
perusal of the petition shows that the Applicant is a well-educated girl who
completed her M.Sc. in Pharmaceutical Chemistry. She has been in custody
for almost two years and six months. The alleged seizure from the Applicant
has clearly not been in the presence of two independent witnesses. The said
two witnesses are officials from the Railway Police who may have been
assisting the NCB. Moreover, the Applicant has been fully supported in her
petition for bail by her entire family. The Applicant's mother works as a
Stenographer in the District Court, Panjim, Goa. The father of the Applicant
Signature Not Verified
Digitally Signed
Signing Date:24.08.2020 22:31
is a retired Professor from the Goa University. The Applicant has two
siblings. The affidavit filed by the Applicant's mother has also satisfied this
Court that the Applicant would join the proceedings and the trial, whenever
called for.
11. In the affidavit of the mother, it is mentioned that the Applicant is
suffering from redness and rashes on her body and treatment is being given in
the prison itself. It is the mother's case that her health has further deteriorated.
In response to this affidavit, a report was called from the jail authorities. The
same has been received today and reads as under:
"1. The inmate/patient Sonia D/o Shamrao Naik
Gaonkar is longed in Mandoli Central Jail No.16. She
has no history or any Chronic illness like Tuberculosis,
Diabetes, Hypertension, Asthma and Seizures.
2. At present she has no complaints, axcept mild skin
allrgy.
3. For skin allergy, she is receiving treatment from jail
and has shown improvement.
4. At present her vitals are stable."
COPY THE REPORT
12. A perusal of the above report shows that the Senior Medical Officer
admits that the Applicant is suffering from skin allergies. There is no response
to the specific plea of the mother in her affidavit where it has been stated that
due to the skin allergy, she has been given medicines in jail and she has
suffered a negative reaction to them. Further, considering the situation of the
pandemic as also various news articles published from time to time about the
spread of COVID-19 even in the jail, the threat of the pandemic is a serious
threat. The Applicant is a permanent resident of Goa with deep roots in
society as is clear from her mother's affidavit as also the petition filed by her
grandfather.
Signature Not Verified
Digitally Signed
Signing Date:24.08.2020 22:31
13. In the nominal roll, the jail conduct of the Applicant is found
satisfactory. There are no other cases pending against the Applicant. The
statement given by the Applicant under Section 67 has been retracted by her
affidavit. However, this Court is not inclined to go into the validity or
otherwise of the said statement at this point.
14. The present petition is only seeking interim bail in order to enable the
Applicant to meet her family. Considering the overall facts and circumstances
of this case, this Court is inclined to give interim bail to the Applicant.
Accordingly, the Applicant shall be released on interim bail for a period of 45
days from the date of release on the following terms and conditions:
i) Applicant shall furnish a personal bond to the tune of
Rs.50,000/- along with surety of the like amount to the satisfaction of
the concerned Trial Court;
ii) The Applicant shall reside in her permanent address with her
family and shall not move out of the precincts of Bambolim, Tiswadi,
North Goa, Goa - 403202;
iii) The Applicant shall report telephonically to the local SHO at
least twice a week;
iv) The IO in Delhi from the NCB shall be continuously in touch
with the Applicant on her live mobile number which shall be provided
by the Applicant;
v) The Applicant shall participate in the trial of the case whenever
directed and shall make arrangements to either be in Delhi or
participate in the hearing through video conferencing;
vi) The Applicant shall not contact any of the other co-accused or
take any steps to hamper the trial of the case.
Signature Not Verified
Digitally Signed
Signing Date:24.08.2020 22:31
15. The Applicant shall surrender upon the expiry of 45 days, from the date
of release.
16. With the above observations, the present petition is disposed of. All
pending applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
AUGUST 24, 2020
Rahul/ A
Signature Not Verified
Digitally Signed
Signing Date:24.08.2020 22:31
