IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS), BENGALURU.
CCH.33.
PRESENT:
SMT. B.S. JAYASHREE, LL.M.,
XXXIII ACC & SJ & SPL.JUDGE (NDPS),
BENGALURU.
DATED: THIS THE 6 th DAY OF AUGUST 2022
Crl. Misc.No.6131/2022
petitioners :
(accused No.3 & 4)
1. Lalremruata, 32 years, S/o.late
Dailova, R/at.213, forest Veng,
Mamit Road, Dapchhuah
(Tutphai), Mammit, Dapchhuah,
Mizoram 796 410.
2. Lalngaihual, 36 years,
W/o.Lalremruata, 3rd floor, Dr B
Thangdailova building, Khatla,
Aizwal, Mizoram 796 001.
(By Sri.S.S., Adv.)
V/S.
Respondent :
Union of India, NCB., Bengaluru.
(By Spl. Public Prosecutor)
OR D E R
The present petition U/Sec.439 of Cr.P.C., is filed by the
petitioners
to
enlarge
them
on
bail,
in
2
NCB.Cr.No.48/1/13/2022/BZU for the offence punishable
U/Sec.8(c), 23C, 27A, 28 and 29 of N.D.P.S. Act.
2. The prevalent grounds urged seeking bail:That the petitioners are innocent and law abiding
citizens. They have not committed any offence much less the
offence as alleged. They have been falsely implicated by the
respondent in this case.
Though the alleged offence is non
bailable, but is neither punishable with imprisonment for life
or death sentence. The petitioner No.1 hails from remote
village called Dapcahul from Mizoram. He has lost his father
when he was 8 years old.
He has to take care of his aged
mother and other family member. He is a manual labourer.
He had come to Bangalore along with his wife to eke his
livelihood. He has no criminal antecedents. He is not taken
for police custody.
He is suffering from spinal cord ailment
due to the previous accident.
The present petitioners were
arrested basing on the statements made by other accused
which is inadmissible in law. The petitioner No.2 is the wife of
petitioner No.1. they were traveling to Bangalore to meet their
relatives who reside there.
They are having 2 children. The
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Crl.Misc.6131/2022
petitioners are ready and willing to abide by any conditions
imposed by this court in the event of grant of bail. They are
ready to offer surety for their due appearance before this court.
Hence, sought to grant bail.
3. The prosecution while opposing the bail petition
contended that the I.O has seized 13.85 Kgs., of heroin from
the conscious possession of accused Nos.1 and 2 as it was
found in their baggages. Three other accused were arrested by
NCB Indore team and have recovered 7 Kgs., of Heroin from
each of them. The said accused persons have revealed that it
was the accused No.4 i.e., petitioner No.2 who had financed
their travel and stay in India and Africa with the help of
petitioner No.1 under the guidance of accused No.5. Basing on
the recovery and the statement of the present petitioner and
other accused, the petitioners and other accused were put
under arrest. The present petitioners have admitted that they
had knowledge of the heroin which was concealed in the
baggages of accused Nos.1 and 2 and they were to be received
by accused Nos.3 and 4/present petitioners for further
delivering it to their Nigerian boss/accused No.5 at New Delhi
4
who was into drug trafficking for making easy money.
The
accused have identified each other as they are the part of same
international drug trafficking network.
The main accused
Mick John accused No.5 has identified the present petitioners
and has stated that he was arranging drug mules from
Mizoram through accused Nos.3 and 4 and all the carriers
apprehended are from Mizoram. The present petitioners lured
the drug mules by providing money and other luxuries of
international travel and stay. As per the disclosure statement
of petitioner No.2 the NCB team along with Lalngaihzuali
Lalnga went to Delhi for follow up action. During the follow up
action Lalngaihzuali Lalnga identified the person namely
Nwafor John Onyechowa @ Mike Jhon who was involved in
drug trafficking to whom these luggage baggage are to be
delivered at Delhi. The present petitioners and other accused
were arrested on 27.5.2022. Their voluntary statement were
also recorded. They have admitted the importing, transporting
and taking, delivering of seized heroin 13.850 Kgs. There are
primafacie materials available against the petitioners attracting
CCH-33
Crl.Misc.6131/2022
5
the offences alleged in the prosecution papers.
With these
main pleas sought to reject the petition.
4. Heard learned counsel for the petitioners and the
prosecution.
5. The points that arise for my consideration are as here
under:
1. Whether petitioners has made out
sufficient grounds to enlarge him on
bail?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1:- The IO., NCB has put the criminal law
into motion. The gist of the allegation reads as here under:On 23.05.2022 at about 17.05 hours the complainant
has received credible information that one luggage baggage
having tag No.KQ495221 contain narcotic drugs is carried by a
lady passenger from Dubai Airport who is traveling from
6
Nairobi to Bangalore via Dubai.
The said flight will reach
Bangalore at around 3.00 hours on 24.5.2022. On receipt of
the information he has informed to his higher officer and
obtained permission to conduct raid.
The NCB team mounted
surveillance at KIA airport, Bangalore on 24.5.2022. At about
4.00 hours the customer service supervisor, Air India Sats KIA
Airport informed that the luggage bearing tag No.KQ 495221
has been arrived and the lady passenger would collect the
same at 5.15 hours.
When the lady passenger came to the
baggage arrival area the staff handed over the said luggage
baggage to the lady passenger and after identified and
confirmed by her that the said luggage belongs to her the NCB
team approached the said lady enquired her, she replied that
she received the said luggage from an African lady at
Zimbabwe on 14.5.2022 which contain narcotic drug.
On
search of the said luggage baggage they found 7 Kgs., of
heroin.
They seized the same. A detail mahazar is drawn,
Arrested the accused and registered the case in NCB.F
No.48/1/13/2022/BZU for the offences punishable under
Sec.8(c), 23C, 27A, 28 and 29 of NDPS Act.
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Crl.Misc.6131/2022
In continuation of seizure of 7 Kgs., of Heroin on
24.5.2022 on the voluntary statement of accused No.1 they
raided the room No.001, Oyo 11419, Surya Residency, New
Airport Road, Bangalore and the accused showed the luggage
baggage.
On searching the same they found 6.850 Kgs., of
heroin. They seized the same under mahazar.
8.
The learned counsel for petitioners argued that the
petitioners herein are husband and wife. They came to
Bangalore to see their relatives. They have been falsely
implanted in the case. They are no way connected to the seized
contraband.
a) He has referred to the dictum of Hon’ble Apex Court
reported in AIR 2020 SCC 667 in the case of Sujit Tiwari
Vs., State of Gujarat and anr., wherein the Hon’ble High
Court has granted bail to the accused in the said case as the
allegation against the accused in the case case is the accused
was aware of what his brother was doing and was actively
helping his brother. In the said case one Sujit Tiwari/accused
No.1 is the brother of appellant in the case. The said accused
along with 4 Iranians have loaded 1500 Kgs., of Heroin to the
8
ship. Instead of going to Egypt as directed by their boss the
appellant and other accused decided to bring the ship to India
and change the name of the Vessel from Prince -II to MV
Hennry.
The appellant in the said case is the brother of
accused No.1, the allegation against the appellant in the said
case is he was helping his brother.
On looking to the
allegations against the appellant in the said case the Hon’ble
Apex
Court
has
granted
bail
to
him.
The
facts
and
circumstances in the said case entirely differs from the present
facts as the petitioner No.2 is the person who is found in
possession of 13.850 Kgs., of heroin along with other accused
and he has also given financial assistance to other accused
who have been arrested by NCB Indore team for transport of 7
Kgs., of heroin. Further, in the luggage baggages the heroin
alleged in the prosecution papers were seized. The present
petitioners have stated that they are aware of heroin which is
found in the seized baggages of accused Nos.1 and 2 and they
were to be received by the present petitioners which is to be
delivered to their Nigerian boss/accused No.5 at New Delhi.
9
CCH-33
Crl.Misc.6131/2022
b) He has also referred to the order of Hon’ble High Court
of Karnataka reported in 2021(5) KCCR 575 in the case of
Irfan Ali Vs., State. In the said case the accused has been
granted bail by the Hon’ble High Court on the ground that
there is no material against the accused in the said case as to
whether the accused in the said case has stocked the ganja in
the house.
The facts and circumstances in the said case
differs from the facts of the present case, hence, with due
respect it may not be made applicable to the present facts.
c) He has also referred to 1991 (4) Kar.L.J.694 in the
case of Shankar Krishnasa Habib Vs., State.
I have
carefully gone through the order in the said case. The Hon’ble
High Court has granted bail to the accused in the case. The
facts and circumstances in the said case differs from the facts
of the present case, hence, with due respect it may not be
made applicable to the present facts.
9. The prosecution contends that in all 13.850 Kgs., of
Heroin is seized from the conscious possession of accused No.1
& 2 which is commercial quantity. They are habitual drug
10
peddlers. In the event of their release they may abscond and
may repeat the crime and there is every possibility of
absconding of the petitioners. The offences alleged are
punishable with RI upto 20 years. The petitioners are not
entitled for bail.
10. On looking to the prosecution papers the quantum
of narcotic substance seized 13.850 Kgs., of Heroin. As per
specification of small and commercial quantity of narcotic drug
or psychotropic substance issued by Ministry of Finance
Department
of
Revenue
Notification
S.O.1055(E)
dated
19.10.2001 at Sl.No.56 the narcotic drug – Heroin weighing 05
grams is small quantity and 250 grams is a commercial
quantity. In the present case heroin seized is weighing 13.850
Kgs., is commercial quantity.
11.
The NDPS Act provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs
and psychotropic substances. At this stage, it is necessary for
me to refer to the judgment of Hon’ble Apex Court in
Crl.Appeal No.1043/2021 dated 22.9.2021 in the case
11
CCH-33
Crl.Misc.6131/2022
Union of India through NCB., Lucknow Vs., Mohammed
Nawaz Khan wherein the NCB., Lucknow has challenged the
order of grant of bail to the accused by the Hon’ble High Court
of Allahabad, Lucknow Bench.
In the said case the Hon’ble
Apex Court pleased to make a detail discussion on the criteria
to be considered for grant of bail when the accused is
prosecuted under the provisions of NDPS Act. At para20 of
the judgment the Hon’ble Apex Court pleased to note that
the High Court and this court are required to apply while
granting bail is whether there are reasonable grounds to
believe that the accused has not committed an offence and
whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drugtrafficking
in the country, stringent parameters for the grant of bail
under the NDPS Act have been prescribed. In the present
case, the High Court while granting bail to the respondent
adverted to two circumstances, namely (i) absence of
recovery of the contraband from the possession of the
respondent and (ii) the wrong name in the endorsement of
translation of the statement under Section 67 of the NDPS
Act.
As regards to the finding of Hon’ble High Court
regarding absence of recovery of the contraband from the
possession of the respondent, we note that in Union of India
12
v. Rattan Mallik, a twojudge Bench of this Court cancelled
the bail of an accused and reversed the finding of the High
Court, which had held that as the contraband (heroin) was
recovered from a specially made cavity above the cabin of a
truck, no contraband was found in the ‘possession’ of the
accused. The Court observed that merely making a finding
on the possession of the contraband did not fulfill the
parameters of Section 37(1)(b) and there was nonapplication
of mind by the High Court. 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.
Further in regard to non compliance of the procedure laid
U/s.42 of NDPS Act, it is held by the Hon’ble Apex Court that
it is a question of fact. Further, at Para30 the Hon’ble Apex
Court pleased to make the following essential elements ought
to have been considered by the Hon’ble High Court of
Lucknow.
(i) The respondent was traveling in the vehicle all the way
from Dimapur in Nagaland to Rampur in Uttar Pradesh
with the coaccused;
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Crl.Misc.6131/2022
(ii) The complaint notes that the CDR analysis of the mobile
number used by the respondent indicates that the
respondent was in regular touch with the other accused
persons who were known to him;
(iii) The quantity of contraband found in the vehicle is of a
commercial quantity; and
(iv) The contraband was concealed in the vehicle in which
the respondent was traveling with the coaccused.
By making a detail observation in granting the bail to the
accused is incorrect and has set aside the impugned order.
The aforesaid recent judgment of Hon’ble Apex Court
clearly highlights on the aspect that what are all the
circumstances to be considered and has to be evaluated by the
court to consider the bail plea of the accused.
In the recent judgment of Hon’ble Apex Court in the case
of State of Kerala Vs., Rajesh in (2020) 12 SCC 122 it is
observed that
“reasonable grounds” means something more than
primafacie grounds. It contemplates substantial probable
causes for believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated in
the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify
14
satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to
have completely overlooked the underlying object of
Section 37 that in addition to the limitations provided
under the CrPC, or any other law for the time being in
force, regulating the grant of bail, its liberal approach in
the matter of bail under the NDPS Act is indeed uncalled
for.
Further in the judgment of Hon’ble Apex Court in the
case of State of MP Vs., Kajad reported in 2001 (7) SCC
673 has held that :
“5. ………….. Negation of bail is the rule and its grant an
exception under subclause (ii) of clause (b) of Section 37(1).
For granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the petitioners are not guilty of the
offences with which they are charged and further that they
are not likely to commit any offence while on bail. It has
further to be noticed that the conditions for granting the bail,
specified in clause (b) of subsection (1) of Section 37 are in
addition to the limitations provided under the Code of
Criminal Procedure or any other law for the time being in
force regulating the grant of bail. Liberal approach in the
matter of bail under the Act is uncalled for.”
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Crl.Misc.6131/2022
In the dictum of Babua Vs., state of Orissa reported in
2001(2)SCC 566 the Hon’ble Apex Court has held that:
“3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the petitioners are not
guilty of such offence and that they are not likely to commit
any offence while on bail alone will entitle them to a bail. In
the present case, the petitioners attempted to secure bail on
various grounds but failed. But those reasons would be
insignificant if we bear in mind the scope of Section 37(1)(b) of
the Act. At this stage of the case all that could be seen is
whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioners or not. At this juncture, we cannot say that the
petitioners are not guilty of the offence if the allegations made
in the charge are established. Nor can we say that the
evidence having not been completely adduced before the
Court that there are no grounds to hold that they are not
guilty of such offence. The other aspect to be borne in mind is
that the liberty of a citizen has got to be balanced with the
interest of the society. In cases where narcotic drugs and
psychotropic substances are involved, the petitioners would
indulge in activities which are lethal to the society. Therefore,
it would certainly be in the interest of the society to keep such
persons behind bars during the pendency of the proceedings
before the court, and the validity of Section 37(1)(b) having
been upheld, we cannot take any other view.”
16
As per the enunciation of law in the afore said dictums it is
clear that no person shall be granted bail unless the two
conditions are satisfied, i.e., the satisfaction of the court that
there are reasonable grounds for believing that the petitioners
are not guilty and that they are not likely to commit any
offence while on bail.
Huge quantum of contraband seized
from the conscious possession of accused No.1 & 2. the
petitioners are having knowledge of concealing of heroin in the
baggages of accused Nos.1 and 2. Further the petitioner No.2
had financed the travel of accused Nos.1 and 2 with the help of
petitioner No.1 under the guidance of accused No.5. At this
stage, there are primafacie materials available against the
petitioners in regard to the possession of narcotic drug. At this
stage, no material placed on record by the petitioner to show
that the present petitioners are no way connected with the
alleged crime.
In the result, I proceed to hold that the
petitioners herein have not made out any grounds to entertain
their plea for bail. Accordingly, I answer point No.1 in the
negative.
CCH-33
Crl.Misc.6131/2022
17
12. Point No.2:-
In the result, I proceed to pass
following:
ORDER
The petition filed by the petitioners U/Sec.439 of
Cr.P.C is hereby rejected.
[Dictated to the stenographer, directly on the computer, typed and
computerised by her, corrected, signed and then pronounced by me in
Open Court on this the 6th day of August 2022]
(B. S. JAYASHREE)
XXXIII ACC & SJ & SPL.JUDGE,
(NDPS) : BENGALURU.