Delhi High Court
Herry @ Ikwunnaya Kizito Ifeanyi vs State on 8 February, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 25.01.2021
% Pronounced on : 08.02.2021
+ BAIL APPLN. 184/2020, Crl. M.A. 9071/2020, Crl. M.A.
12160/2020 & Cr. M.A. 17066/2020.
HERRY @ IKWUNNAYA KIZITO IFEANYI
..... Petitioner
Through: Ms. Sushma Sharma and Mr.
Girish Kumar, Advs.
versus
STATE ..... Respondent
Through: Dr. M.P. Singh, APP with Insp.
Pravesh Kasana
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
RAJNISH BHATNAGAR, J.
1. By way of this order, I shall dispose of the present petition filed
under Section 439 Cr.P.C. on behalf of the petitioner for grant of bail in
case FIR No. 82/19 U/s 21 NDPS Act & 14 Foreigners Act, registered
at Police Station New Friends Colony (AATS).
2. Briefly stated, the allegations against the petitioner are that he is
a foreign national who has been staying in India without any visa. It is
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:08.02.2021
18:27
further alleged against him that on 15.04.2019 at 8:45 p.m. in front of
Batra Cinema, Community Centre, NFC, he was apprehended and
found in possession of 39.6 grams of cocaine including the weight of
polythene. The petitioner was allegedly found in possession of
intermediate quantity of cocaine.
3. I have heard the Ld. counsel for the petitioner, Ld. APP for the
State and also perused the records of the case.
4. It is submitted by the Ld. counsel for the petitioner that the
quantity recovered from the petitioner is intermediate quantity and
hence there is no bar of Section 37 of the NDPS Act. She further
submitted that no public witness had been joined by the IO at the time
of arrest and recovery from the petitioner. She further submitted that
the prosecution has not followed the mandatory provision of Section 50
of the NDPS Act. It is further submitted by her that the case property
has been tampered with before sending the same to FSL as two samples
were drawn at the same time. She further submitted that the petitioner
has clean past antecedents.
5. On the other hand, Ld. APP for the State has submitted that all
the contentions raised by the counsel for the petitioner are matter of
trial. He further submitted that before the petitioner could be arrested,
he threw one polythene after taking out from his right side pocket of
the pant on the road, so there was no occasion to serve the notice U/s
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:08.02.2021
18:27
50 of the NDPS Act upon the petitioner before his search and
provisions of Section 50 of the NDPS Act does not apply in the facts
and circumstances of this case. It is further submitted by the Ld. APP
that the petitioner is a foreign national and in case he is enlarged on
bail, he will not be available for trial.
6. As far as the contention of the counsel for the petitioner with
regard to the tampering of sample and non joining of the public
witnesses, the same cannot be looked into at the stage of bail and are
matter of trial.
7. This is not in dispute that the contraband recovered from the
petitioner is 35 gram of cocaine and the said contraband falls within the
category of intermediate category, therefore, rigors of Section 37 shall
not apply. The challan has already been filed before the Ld. Sessions
Court and the presence of the petitioner is required only during the
trial. The respondent/state has not placed anything on record to show
that the petitioner is a habitual offender and is involved in similar type
of offence and the allegations against the petitioner are subject to proof
during the trial.
8. So far as the contention of the Ld. APP that the petitioner is a
foreign national and he may not be available for trial, this contention of
the Ld. APP can be taken care of by directing the petitioner to produce
two solvent sureties for securing his presence during the trial.
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:08.02.2021
18:27
9. During the course of hearing of this petition, the petitioner has
placed on record the address of one Raj Kumar Yadav to contend that
in case, he is released on bail, he would be living on rent at a monthly
rent of Rs. 6000/- per month at his house. This factum was got verified
and as per the verification report filed by the IO the said Raj Kumar
Yadav has made a statement to the effect that he would allow the
petitioner to live in his house at a monthly rent of Rs. 6000/- per month
and the paper formalities would be done in case the petitioner is
released on bail.
10. Therefore, keeping in view the fact that the quantity of
contraband falls within the category of intermediate category, petitioner
has clean past antecedents and the charge sheet stands filed, this court
is of the considered opinion that the petitioner deserves to be enlarged
on bail subject to furnishing of two local solvent sureties to the tune of
Rs. 50,000/- each to the satisfaction of the trial Court. The petitioner
shall furnish an undertaking that he shall intimate his whereabouts to
the concerned SHO on the 1st day of every month. The petitioner shall
also telephonically report at the local police station once a week on
every Monday. On each such occasion, the petitioner shall drop a
Google pin from his mobile phone to the SHO of the police station
concerned so as to inform the SHO about his current location.
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:08.02.2021
18:27
11. In the event of violation of any of the condition mentioned above,
the respondent/state can lay a motion for cancellation of bail of the
petitioner before the trial Court. Concerned Superintendent Jail is
directed not to release the passport of the petitioner without the
petitioner obtaining permission from the Trial Court. The bail
application is disposed of accordingly. All pending applications (if
any) are also disposed of accordingly. Copy of this order be also sent to
the concerned Jail Superintendent.
RAJNISH BHATNAGAR, J
FEBRUARY 08, 2021
Sumant
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:08.02.2021
18:27
