Grace Agwu Onuka vs Union Of India
2023 Latest Caselaw 1517 Kant

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                                                   CRL.P No. 1181 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 23RD DAY OF FEBRUARY, 2023

                                        BEFORE
                          THE HON'BLE MRS JUSTICE M G UMA
                        CRIMINAL PETITION NO. 1181 OF 2023
                BETWEEN:
                GRACE AGWU ONUKA,
                D/O AGWU ONUKA,
                AGED ABOUT 21 YEARS,
                R/AT H. NO. 359,
                2ND FLOOR, PHASE 1A,
                OM VIHAR, GALI NO.22,
                UTTAM NAGAR,
                NEW DELHI - 110 059,
                PERMANENT ADDRESS,
                R/O H. NO. 20,
                ALHAJI USMAN STREET,
                KADUNA, NIGERIA - 320 242,

                                                            ...PETITIONER
                (BY SRI. NISHIT KUMAR SHETTY0, ADVOCATE)
Digitally
signed by C
SOWMYA          AND:
Location:       UNION OF INDIA,
High Court of
Karnataka       BY INTELLIGENCE OFFICER,
                NARCOTICS CONTROL BUREAU (NCB),
                BANGALORE ZONAL UNIT,
                RAMANNA GARDEN,
                KATTIGENAHALLI,
                BAGALUR MAIN ROAD,
                YELHANKA POST,
                BANGALORE - 560 063.
                                                           ...RESPONDENT
                (BY SRI. BALAKRISHNA M.R, CGC)
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                                        CRL.P No. 1181 of 2023




     THIS CRL.P IS FILED U/S.439 OF CR.P.C PRAYING TO
ENLARGE        THE        PETITIONER         ON           BAIL      IN
NCB.CR.NO.48/1/13/22/BZU OF NCB POLICE AND OF THE FILE
OF THE XXXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, SPL.
JUDGE (NDPS) BANGALORE (CCH-33) FOR THE OFFENCE P/U/S
8(C), 21(C), 23(C), 28, 29 OF NDPS ACT.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner-accused No.7 is before this Court

seeking grant of bail under Section 439 of Cr.P.C. in NCB

Crime No.48/1/13/2022/BZU of Narcotics Control Bureau,

Bengaluru Zonal Unit, pending on the file of XXXIII

Additional City Civil and Sessions Judge and Special Judge

for NDPS Cases, Bengaluru, registered for the offences

punishable under Sections 8(c), 21(c), 23(c), 28 and 29 of

the Narcotic Drugs and Psychotropic Substances Act, 1985

(for short 'NDPS Act'),

2. Heard Sri. Nishit Kumar Shetty, learned counsel

for the petitioner and Sri. M.R.Balakrishna, learned Central

CRL.P No. 1181 of 2023

Government Counsel for the respondent-NCB. Perused the

materials on record.

3. Learned counsel for the petitioner submitted that

the petitioner is arrayed as accused No.7. She is innocent

and has not committed any offences as alleged. She has

been falsely implicated in the matter without any basis. She

was apprehended on 30.05.2022 and since then she is in

judicial custody. Initially, the first information was

registered on 23.05.2022 against accused Nos.1 and 2 where

they were found with 7 kgs of Heroin at the International

Airport, Bengaluru. Subsequently, it is stated that on the

basis of the information given by accused No.2, her room

was searched at Surya Residency and 6.850 kgs of Heroin

was said to have been seized. Subsequently, accused Nos.3

to 8 were also apprehended. In the meantime, on

03.08.2022 an information from the Intelligence Bureau was

said to have been received. On 28.05.2022, NCB Police

issued notice under Section 67 of NDPS Act, 1985 to accused

No.6, 7 and 8 to appear before the Intelligence Officer.

Intelligence Officer said to have recorded the voluntary

CRL.P No. 1181 of 2023

statements of accused No.6, 7 and 8 and they said to have

accepted their involvement in importing, transporting and

taking delivery of seized 13.850 kgs of Heroin. Learned

counsel also submitted that no contraband was either seized

or recovered at the instance of the petitioner. Since she is a

citizen of Nigeria, she has surrendered her original passport,

which is verified by NCB and she is ready and willing to abide

by any of the conditions including the condition to appear

before the Investigating Officer once in a week and to get

the visa extended, as the same was expired during her

detention in custody. Learned counsel for the petitioner

further submitted that the petitioner is ready and willing to

offer local surety to the satisfaction of the trial Court. Her

detention in custody would amount to pre-trial punishment.

She is the permanent resident of the address mentioned in

the cause title to the petition and is ready and willing to

abide by any of the conditions that would be imposed by this

Court. Hence, he prays to allow the petition.

4. Per contra, learned Central Government counsel

(for short 'CGC') for the respondent-NCB opposing the

CRL.P No. 1181 of 2023

petition submitted that serious allegations are made against

the petitioner for having committed the offences. Accused

Nos.1 and 2 were apprehended and huge quantity of

Heroine, which constitute commercial quantity was

recovered. Learned CGC further submits that the petitioner

is a Nigerian citizen and the validity of the passport produced

by the learned counsel for the petitioner is to be verified,

which is a time consuming exercise. Moreover, the

petitioner arrived India on a student visa on 24.03.2022.

However, she never joined any School or College, thereby

violated the Registration of Foreigners Rule, 1992. In the

meantime, visa expired on 21.12.2022. Therefore, the

petitioner is overstaying in India without a valid visa. If in

the meantime, the petitioner is enlarged on bail, securing her

presence before the trial Court during the trial will be a

herculean task. Looking to the nature and seriousness of

the offences, the petitioner is not entitled to be enlarged on

bail, at this stage.

5. Learned CGSC placed reliance on the decisions of

the Hon'ble Apex Court in the case of Narcotics Control

CRL.P No. 1181 of 2023

Bureau Vs. Mohit Aggarwal1 and Union of India through

Narcotics Control Bureau, Lucknow Vs. Mohammed

Nawaz Khan2, to contend that when Section 37(1)(b)(ii) of

NDPS Act is made applicable, irrespective of seizure of

contraband from the person, twin conditions contained

therein have to be satisfied. Therefore, the petitioner is not

entitled for grant of bail. Hence, he prays for dismissal of

the petition.

6. In view of the rival contentions urged by the

learned counsel for both the parties, the point that would

arise for my consideration is:

"Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?"

My answer to the above point is in 'Affirmative' for the

following:

SLP No.6128-29 of 2021

AIR 2021 Supreme Court 4476

CRL.P No. 1181 of 2023

REASONS

7. The allegations made against the petitioner is of

serious nature. The present petitioner and accused No.6 and

8 were present before the Intelligence Officer. Their

voluntary statements were recorded. They said to have

conceded their involvement in importing, transporting and

taking delivery of seized 13.850 kgs of Heroin. She is a

citizen of Nigeria over staying in India, without valid visa.

8. Even though, such serious allegations are made

against the petitioner, the materials placed before the Court

disclose that commercial quantity of contraband i.e., Hashish

was seized at the instance of accused Nos.1 and 2. Even

though, the house of the petitioner at Delhi was searched

and her statements were recorded, nothing incriminating

was recovered.

9. Now, the question arises as to whether these

serious allegations are sufficient to invoke Section

37(1)(b)(ii) of NDPS Act. To invoke Section 37(1)(b)(ii) of

NDPS Act, the offence alleged must be punishable either

CRL.P No. 1181 of 2023

under Section 19 or Section 24 or Section 27(a) and also the

offence involving commercial quantity of the contraband. To

invoke any of these sections, there must be contravention in

relation to the contraband referred to therein or there must

be offensive or illicit trafficking or harbouring the offenders.

Even if there are prima facie materials to contend that the

petitioner was found in possession of commercial quantity of

the contraband, the bar under Section 37(1)(b)(ii) of NDPS

Act could be invoked. But in the present case, the

contentions raised by the learned counsel disclose that

nothing incriminating was either recovered or unearthed to

connect the petitioner to any of these offences in question.

Simply, because serious allegations are made and the

husband of the petitioner being a Nigerian citizen over

staying in Bengaluru and he is absconding, cannot be a

ground to detain the petitioner in custody.

10. Learned CGC for the respondent placed reliance on

the case of Union of India through Narcotics Control

Bureau, Lucknow (supra). The Court observed that,

finding of absence of possession of the contraband on the

CRL.P No. 1181 of 2023

person of the respondent does not absolve the accused from

the level of scrutiny as required as under Section 37(1)(b)(ii)

of NDPS Act. The facts and circumstances of the case in

hand which was under consideration by the Hon'ble Apex

Court disclose that no contraband was seized from the

person of the accused, but on search of the car in which the

accused were travelling, 1.740 kgs + 1.750 kgs of

contraband in two polythene packets hidden under the wiper

were found. Under such circumstances, the above

observation was made at para 25 of the decision which reads

as under:

25. "In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act."

11. Learned CGC also placed reliance on the decision

of Hon'ble Apex Court in the case of Narcotics Control

Bureau (supra), to contend that the petitioner is not entitled

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CRL.P No. 1181 of 2023

for grant of bail in view of Section 37(1)(b)(ii) of NDPS Act.

At para 17 of the judgment the Hon'ble Apex Court

specifically held that,

"Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and accordingly, the appellants were allowed and the impugned order releasing the respondent on post-arrest bail was quashed."

(emphasis supplied)

12. Therefore, in both these cases the accused were

found to be in possession of the contraband or there were

other circumstantial evidence brought on record against the

accused. But the facts and circumstances of the present case

discussed above discloses that there is no such incriminating

materials, which is sufficient to connect the petitioner to the

offence in question which are placed before the Court, at this

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CRL.P No. 1181 of 2023

stage. Mere suspicion, however serious it may be, cannot be

a ground to detain the petitioner in custody by refusing the

valuable right of the petitioner of her life and liberty.

Therefore, I am of the opinion that the petitioner is entitled

to be enlarged on bail.

13. The apprehension expressed by the learned CGC

appears to be very reasonable and practicable. Therefore, I

am of the opinion that the petitioner is entitled to be

enlarged on bail subject to conditions, which will take care of

the apprehension expressed by the learned Central

Government counsel that the petitioner may abscond or

may tamper or threaten the prosecution witnesses.

14. Accordingly, I answer the above point in the

affirmative and proceed to pass the following:

ORDER

The petition is allowed.

The petitioner is ordered to be enlarged on bail in NCB

Crime No.48/1/13/2022/BZU of Narcotics Control Bureau,

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CRL.P No. 1181 of 2023

Bengaluru Zonal Unit, pending on the file of XXXIII

Additional City Civil and Sessions Judge and Special Judge

for NDPS Cases, Bengaluru, on obtaining the bond in a sum

of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties

for the likesum to the satisfaction of the jurisdictional Court,

subject to the following conditions:

a). The petitioner shall not commit similar offences.

b). The petitioner shall not threaten or tamper with the prosecution witnesses.

c). The petitioner shall appear before the Court as and when required.

     d).    The petitioner shall surrender her passport
            before      NCB,    Bengaluru      forthwith         for
            verification and needful action.

     e).    The petitioner shall mark her attendance

before NCB, Delhi once in fortnight, till further orders, since she is the resident of Delhi.

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CRL.P No. 1181 of 2023

If in case, the petitioner violates any of the conditions

as stated above, the prosecution will be at liberty to move

the Trial Court seeking cancellation of bail.

On furnishing the sureties by the petitioner, the Trial

Court is at liberty to direct the Investigating Officer to verify

the correctness of the address and authenticity of the

documents furnished by the petitioner and the sureties and a

report may be called for in that regard, which is to be

submitted by the Investigating Officer within 5 days. The

Trial Court on satisfaction, may proceed to accept the

sureties for the purpose of releasing the petitioner on bail.

Sd/-

JUDGE

SMC