Mrs Juliet R Zamveli vs Union Of India
2023 Latest Caselaw 297 Kant

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                                                CRL.P No. 10604 of 2022




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 5TH DAY OF JANUARY, 2023

                                      BEFORE
                         THE HON'BLE MRS JUSTICE M G UMA
                       CRIMINAL PETITION NO. 10604 OF 2022
               BETWEEN:

               MRS JULIET R ZAMVELI
               W/O SIMON EZE CHUKWUMA
               AGED ABOUT 49 YEARS
               R/ NO.67/A, PHASE-I
               OM VIHAR, UTTAMNAGAR
               NEW DELHI-110059
                                                          ...PETITIONER
               (BY SRI. HASHMATH PASHA, SENIOR COUNSEL
               FOR SRI. KARIAPPA N A.,ADVOCATE)

               AND:

               UNION OF INDIA
               NARCOTIC CONTROL BUREAU
               BANGALORE ZONAL UNIT
               BANGALORE- 560026
               (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR
Digitally
signed by      HIGH COURT OF KARNATAKA
SUNITHA        BANGALORE)
GANGARAJU                                              ...RESPONDENT
Location:
High Court     (BY SRI. M.R.BALAKRISHNA, ADVOCATE)
Of Karnataka
                    THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
               OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
               CRIME NCB FILE NO.48/1/13/2022/BZU FOR THE OFFENCE
               P/U/S.8(C),21(C),23,27-A,28 AND 29 OF NDPS ACT WHICH IS
               PENDING ON THE FILE OF THE HONBLE XXXIII ADDITIONAL
               CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
               NDPS CASES, BENGALURU.

                    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
               THE COURT MADE THE FOLLOWING:
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                                         CRL.P No. 10604 of 2022




                            ORDER

The petitioner-accused No.9 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 Police,

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, 27-A, 28 and 29 of the Narcotic Drugs

And Psychotropic Substances Act, 1985 (for short 'NDPS Act'),

on the basis of the first information received by -NCB.

2. Heard Sri. Hashmath Pasha, learned Senior

advocate for Sri. Kariappa N.A., advocate for the petitioner and

Sri. M.R.Balakrishna, learned Central Government Standing

Counsel for the respondent -NCB. Perused the materials on

record.

3. Learned Senior counsel for the petitioner submitted

that the petitioner is arrayed as accused No.9. 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 07.08.2022 and since then she is in judicial

CRL.P No. 10604 of 2022

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.

The house of the petitioner at Delhi was searched by NCB

police, but no incriminating materials were found. The

petitioner was brought to Bengaluru on 06.08.2022. Her

voluntary statements were recorded on 06.08.2022 and

07.08.2022, but nothing incriminating is available on record to

connect the petitioner to any of the offences in question. The

only allegation against the petitioner is that she is a drug

peddler and her husband is a Nigerian resident and that he is

absconding. The same cannot be a ground to implicate the

petitioner. She is not required to be detained in custody and

her detention would amount to pre-trial punishment. She is

the permanent resident of the address mentioned in the cause

CRL.P No. 10604 of 2022

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 Standing

counsel (for short 'CGSC') for the respondent- NCB opposing

the petition submitted that serious allegations are made against

the petitioner for having committed the offences. Even though,

accused Nos.1 and 2 were apprehended and huge quantity of

Heroine, which constitute commercial quantity was recovered

from the accused, during investigation, it revealed that the

petitioner is a member of International Drug Trafficking

Syndicate and she is having close nexus with other accused.

Her husband is a Nigerian citizen over staying in the Country

and he is absconding. The petitioner is the carrier of the drug

and she is the financier. The investigation is still in progress.

Looking to the 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 Bureau

CRL.P No. 10604 of 2022

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:

REASONS

7. The allegations made against the petitioner is of

serious nature. It is stated that she is a member of

SLP No.6128-29 of 2021

AIR 2021 Supreme Court 4476

CRL.P No. 10604 of 2022

International Drugs Trafficking Syndicate and her husband is

also actively involved in drug trafficking. He being a citizen of

Nigeria over stayed in Bengaluru. It is stated that he is

absconding and is not available for enquiry. It is also stated

that the petitioner is a carrier of the drug and she is a financier.

The investigation is still under progress.

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,

nothing incriminating was found. Even after she was brought

to Bengaluru and was arrested on 07.08.2022, nothing

incriminating was recovered from her or at her instance. It is

stated that her voluntary statements were recorded on

06.08.2022 and 07.08.2022. Such voluntary statement also not

led to recovery of any incriminating materials. However, few

information regarding her husband, who is also said to be

involved in drug trafficking and the manner in which the drug

being trafficking from African countries through Nepal to India,

were said to have been unearthed.

CRL.P No. 10604 of 2022

9. Now, the question arises as to whether on the basis of

these serious allegations are sufficient to invoke Section

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

the offence alleged must be punishable either 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) 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 CGSC for the respondent placed reliance in

the case of Union of India through Narcotics Control

CRL.P No. 10604 of 2022

Bureau, Lucknow (supra), the Court observed that, the

finding of absence of possession of the contraband on the

person of the respondent does not absolve the accused of the

level of scrutiny required 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."

(emphasis supplied)

CRL.P No. 10604 of 2022

11. Learned CGSC 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 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. But the facts and

circumstances of the present case discussed above discloses

that there is no such incriminating materials, which is sufficient

even remotely to connect the petitioner to the offence in

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CRL.P No. 10604 of 2022

question which are placed before the Court. 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. Learned CGSC at this stage submitted that since the

petitioner is involved in International drug trafficking and her

husband is already absconding, stringent conditions may be

imposed to enlarge the petitioner on bail. However, the said

submission is very clear and reasonable to take care of the

interest of the prosecution. Hence, 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 Standing 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.

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CRL.P No. 10604 of 2022

The petitioner is ordered to be enlarged on bail in NCB

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

Police, 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, Delhi forthwith.

e). The petitioner shall mark her attendance before NCB, Delhi once in fortnight, till completion of the investigation, since she is the resident of Delhi.

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CRL.P No. 10604 of 2022

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

SKS