Delhi High Court
Ganesh Pun vs Union Of India Narcotics Control ... on 3 June, 2022
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on: 18.05.2022
Order delivered on: 03.06.2022
+ BAIL APPLN. 744/2022
GANESH PUN
..... Petitioner
Through: Mr. Karan Verma, Advocate with Ms.
Sushma Sharma, Advocate.
versus
UNION OF INDIA NARCOTICS CONTROL BUREAU
..... Respondent
Through: Mr. Subhash Bansal, Sr. Standing
Counsel for NCB with Mr. Shashwat
Bansal, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
ANOOP KUMAR MENDIRATTA, J.
1. This is an application under section 439 of Cr.P.C filed on behalf of
the applicant/petitioner seeking regular bail in NCB No.VIII/03/DZU 2018
SC No. 29/2019 registered under sections 8(c) and 22(b) of NDPS Act.
2. In brief, as per the case of prosecution, NCB on 12.02.2018 searched a
courier parcel bearing Airway Bill No.6053235871 at DHL Express India (P)
Ltd., 71/03 Rama Road, Industrial Area, Delhi. On examination of the said
parcel, the sender details were mentioned as Sushma Chetri, Arabinda Pelly,
Patulia, Titagarh, West Bengal, Kolkata and the Receiver's name was
reflected as Mrs. Michele Barnett, 5701, Kinsley Circle, Plano TX-75093,
Signature Not Verified
By:DINESH CHANDRA
Signing Date:03.06.2022
17:25:47
USA. Upon opening of the said parcel, it was found to contain a cardboard
packet wrapped in a yellow coloured plastic of DHL, which on opening
contained a small size plastic Sewing Machine of white colour with Mark
'Ming Hui'. The sewing machine, on disassembling, was further found to
contain transparent packets with white-coloured tablets which were pasted
inside the sewing machine with brown-coloured adhesive tape. All the 6
transparent polythenes were removed and the white-coloured tablets in each
packet were marked Nitrosun-10. On search on internet, the said tablets were
found to be of Psychotropic Substance under the name of Nitrazepam (At
No. 221 as per Notification dated 16-07-1996). Since the tablets were similar
and all were marked Nitrosun-10, the total quantity of tablets was counted
which came out to be 200 and weighed 108 grams. The seizure proceedings
were conducted in the presence of independent witnesses and a Panchnama
was drawn on 12-02-2018.
During investigation, efforts were made to locate Sushma Chetri, who
along with her husband Ganesh Pun (i.e. the petitioner) was found at
Kolkata. From the search of the flat, further huge quantity of psychotropic
substance tablets was found and a separate case was registered by the NCB,
Kolkatta.
3. During investigation, on 25.09.2018, summons under Section 67 of
NDPS Act were issued to Sushma Chetri and in pursuance thereof, she
tendered her voluntary statement wherein she revealed that mobile number
and Photo ID attached with parcel belonged to her and the same were
attached with the seized parcel by her husband Ganesh Pun while sending
the seized parcel. Also, statement of Ganesh Pun was recorded who revealed
Signature Not Verified
By:DINESH CHANDRA
Signing Date:03.06.2022
17:25:47
that he had booked the recovered parcel and concealed 200 tablets (Nitrosun-
10) in a plastic sewing machine and booked the same by using the ID of his
wife Sushma Chetri. The petitioner was further identified by Arun Adhikari,
Booking Clerk at Blue Dart & DHL.
4. Learned counsel for the petitioner submits that the petitioner is in
custody since 15.11.2018 except for a period of interim bail. The earlier
application is stated to have been dismissed by this Court vide order dated
11.02.2020. It is further submitted that the application for regular bail was
further again withdrawn before this Court vide on 30.11.2021.
On merits, the prosecution case is assailed on the following grounds:-
(i) Nitrosun-10 is a medicine used to cure insomnia and is easily
available in the market;
(ii) No sample was drawn at the time of seizure of the alleged
contraband on 12.02.2018 in violation of Standing Orders No.
01/88, 02/88 and 01/89 issued by the Government of India;
(iii) Executive Magistrate has no power to certify the inventory
under Section 52-A of the NDPS Act;
(iv) Executive Magistrate, Rajouri Garden exceeded its jurisdiction
and had no jurisdiction to certify the correctness of inventory as
the alleged seizure was made within the jurisdiction of Tis
Hazari Court whereas the office of the NCB is within the
jurisdiction of Patiala House Courts;
(v) There is delay of 324 days in drawing the samples;
Signature Not Verified
By:DINESH CHANDRA
Signing Date:03.06.2022
17:25:47
(vi) The substance from each of the pouches was mixed in a single
packet before drawing any sample and, therefore, identity of
substance in each pouch was lost;
(vii) The present case falls under the category of intermediate
quantity and, as such, embargo under Section 37 of the NDPS
Act is not attracted;
(viii) The presumptions under Section 35 & 54 of the NDPS Act are
not attracted.
5. On the other hand, the application has been vehemently opposed by
the learned counsel for the respondent. It is urged that the earlier application
was dismissed vide a detailed order by this Court on 11.02.2020 and another
application was withdrawn on 30.11.2021. It is urged that in absence of any
change in circumstances, the order cannot be reviewed. The petitioner is
also stated to be facing separate trial under NDPS Act qua huge quantity of
contraband recovered from his house at Kolkata.
6. I have given considered thought to the contentions raised.
The earlier bail application was dismissed vide detailed order dated
11.02.2020 passed by Hon'ble Mr. Justice Brijesh Sethi. It was noticed that
the petitioner is dealing with narcotic drugs and a huge quantity of
psychotropic tablets was also separately recovered, in respect of which a
case stands registered at Kolkata, in which he was released on default bail.
The bail was further denied observing that so far as minor discrepancies or
contradictions are concerned, these will be considered by the learned Trial
Court at the appropriate stage but the same cannot be examined at this stage
Signature Not Verified
By:DINESH CHANDRA
Signing Date:03.06.2022
17:25:47
as the law is well settled that at the time of bail, the evidence need not be
discussed or analyzed in detail. It was noticed that identity of the petitioner
also stands established by the Booking Clerk.
The learned Trial Court vide order dated 15.09.2021 has again denied
the bail, considering the gravity of offence and the fact that the sentence
even for the intermediate quantity is ten years.
Thereafter, another application for bail filed on behalf of the petitioner
was dismissed as withdrawn before learned Predecessor on 30.11.2021. I am
of the considered view that it may be inappropriate to reconsider the view
taken by Hon'ble Mr. Justice Brijesh Sethi while disposing the earlier bail
application, without any change in circumstances, merely on the ground that
the petitioner/accused is in custody. The discrepancies, if any, in the case of
the prosecution can be appropriately looked into after the examination of the
material witnesses by the learned Trial Court. The accused also appears to
be illegally dealing in psychotropic substances as he also faces prosecution
in another case wherein commercial quantity was recovered from his
residence.
Reliance may also be placed upon State of M.P. v. Kajad, (2001) 7
SCC 673 wherein it was observed that successive applications are
permissible in changed circumstances but without change in circumstances,
the second application would be deemed to be seeking review of the earlier
judgment, which is not permissible under criminal law. Reference therein
was also made to Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1
SCC 169.
Signature Not Verified
By:DINESH CHANDRA
Signing Date:03.06.2022
17:25:47
For the aforesaid reasons, the application is dismissed. Nothing stated
hereinabove shall tantamount to an expression on the merits of the case.
However, considering the fact that the petitioner/accused is in custody
for a considerable period, learned Trial Court is directed to conclude the trial
expeditiously in a time bound manner, within a period of six months.
A copy of this order be forwarded to the learned Trial Court as well as
Jail Superintendent for information and compliance.
(ANOOP KUMAR MENDIRATTA)
JUDGE
June 03, 2022/A
Signature Not Verified
By:DINESH CHANDRA
Signing Date:03.06.2022
17:25:47
