NDPS RA 736/2018
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BA 603/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 603 OF 2018
IN
NDPS REMAND APPLICATION NO. 736 OF 2018
Njoku Nwachukwu Pius @
Joku Humay Wachuku,
Aged 32 yrs., Occ.: Nil,
Nigerian national,
R/A Road Side, Virar,
Virar, Dist: Palghar.
… Applicant
/ Accused no. 9
Vs.
The State of Maharashtra
(at the instance of ANC, Ghatkopar
Unit, Mumbai vide C.R. No. 30/2018
dated 28/07/2018).
… Respondent.
Appearance:
Ld. Advocate Mr. S. Bhandary for the applicant/ accused.
Ld. APP Mr. Panjwani for the prosecution.
CORAM: H.H.THE SPECIAL JUDGE (NDPS)
SHRI. U. M. MUDHOLKAR
(C.R.NO.43)
DATED: 6th OCTOBER, 2018.
ORAL ORDER
This is an application for bail filed by applicant/accused
Njoku Nwachukwu Pius @ Joku Humay Wachuku on account of his
arrest by the officers of ANC, Ghatkopar Unit, Mumbai for commission
of offences punishable u/s. 8(c) r/w 21(b), 22(b) and 29 of NDPS Act,
1985 and Section 14 (a)(b) of Foreigners Act and Section 37 r/w 135 of
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Bombay Police Act, 1952 and Sections 332 & 353 r/w 34 of the Indian
Penal Code.
2.
The
prosecution
case
in
nutshell
reveals
that
on
28/07/2018, as per directions of superiors and under the supervision of
PSI Kadam, the patrolling team was in the search of absconded &
wanted accused as well as in the search of absconded & wanted accused
in C.R. No. 118/2018 of J.J. Marg Police Station and at the given spot 9
Nigerian
nations
circumstance.
were
found
loitering
there
in
a
suspicious
On inquiry by PI Sawant and noticing the sudden
presence of police team they scuffled with members of the team and in
the incident some of the team members sustained injuries. However,
the team succeeded in apprehending them. They were suspected to be
carrying contraband and in presence of panch witnesses their personal
search was conducted, wherein cocaine of 14 gms was found in the
possession of present applicant/accused, which came to be seized by
following due procedure. Similarly, the knife was found in the personal
search of coaccused Charles which was also seized by following due
procedure. Thereafter, the applicant/accused was placed under arrest
for violation of provision of NDPS Act,1985 as well as other Acts
mentioned above. After cessation of his police custody, presently he is
in judicial custody.
3.
The bail is sought on the ground that applicant/accused is
falsely implicated in the crime. It is specifically contended that the
quantity of cocaine allegedly seized from the possession of the present
applicant/accused comes under the category of noncommercial
quantity and therefore, the bar of Section 37 of the NDPS Act does not
get attracted. The applicant/accused is ready to deposit his passports
NDPS RA 736/2018
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before the court. The period for filing chargesheet has come to an end.
He will abide by the conditions imposed by this Court, in the event he is
released on bail. On these grounds it is prayed that applicant/ accused
be enlarged on bail.
4.
The respondent/State contested the petition by filing reply
dated 29/08/2018 as well as on the application itself.
It is mainly
contended that the contraband has been seized from the possession of
the applicant/accused by strictly following the provision of NDPS Act.
He has no respect for law as well as law enforcing agency and being
foreign nationals, if released on released on bail will abscond and may
not be available for trial and may also engage in the similar crime. So
also the investigation is not yet completed. On these grounds it is
prayed that the application be rejected.
5.
Heard Ld. Advocate Mr. Liman for applicant & the Ld. APP
Mr. Panjwani for the State, at length.
6.
It is submitted by the Ld. Defence Counsel that the quantity
of cocaine allegedly seized at the instance of applicant/accused is the
noncommercial quantity, as per the details reflected in the reply and
therefore, primarily the bar as contemplated u/s.37 of the NDPS Act,
does not attract. It is further submitted that the period for filing charge
sheet has already come to an end.
So also the application of Ex8
seeking extension of time for filing chargesheet has been rejected by
this court. As such he requested to release the applicant on bail. Per
contra the Ld APP Mr. Panjwani objected granting of the application on
the grounds reflected in the reply.
NDPS RA 736/2018
7.
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I have carefully gone through submissions of both the sides
and record. It can be gathered from the material placed on record that
the applicant is allegedly found having in his possession 14 gms of
cocaine which is undoubtedly and admittedly noncommercial quantity.
Naturally, the bar under section 37 of the NDPS Act does not get
attracted.
8.
Admittedly, applicant/accused is arrested on 28/07/2018
and the maximum punishment provided for the alleged offences is upto
10 years. Therefore, in view of the settled position of law the IO is
under legal obligation to file the chargesheet within 60 days i.e. on or
before 28/09/2018. However, till passing of this order today charge
sheet has not been filed. The application of Ex8 seeking extension of
time for filing chargesheet has already been rejected by this court. In
other words, the applicant/accused is also entitled for default bail, for
which the merits of the case are irrelevant.
9.
It is equally a matter of record that since his arrest on
28/07/2018 he is in the custody and by this time the investigation in
the matter might have been almost competed, except the collection of
the CA Report from competent authority. So also most the witnesses in
the case are the officers attached to ANC and thereby, there is no
likelihood of tampering with the evidence or otherwise. Now nothing is
to be recovered or discovered on pointing out of the applicant. The
conclusion of the trial in the present case would take sufficient long
time and it is not desirable to keep the applicant behind the bars till
then. Under these circumstances, their further detention in the judicial
custody appears to be unwarranted. In order to minimise the possibility
of abscondance of the accused, the surrendering of passport can be
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ordered to be a condition precedent for his actual release on bail. There
is neither allegation nor record of criminal antecedents to the discredit
of the applicant.
In view of forgoing discussion, I conclude that
application deserves to be allowed and the interest of prosecution can
be secured by imposing following stringent conditions :
ORDER
1.
Bail Application No. 603/2018 in NDPS Remand
Application No. 736/2018 is hereby allowed.
2.
The applicant/accused Njoku Nwachukwu Pius @
Joku Humay Wachuku, in C.R. No.30/2018 registered with
ANC, Ghatkopar Unit, Mumbai, be released on bail on his
executing P.R. Bond of Rs.1,50,000/ (Rs. One Lakh Fifty
Thousand only), with one or two sureties in the like amount.
3.
The applicant/accused shall not leave the territory of
India without prior permission of this Court and, if not
seized by the investigation agency he shall surrender his
passport before the Registrar (Sessions) of this court prior to
his actual release from jail. On such surrender, the passport
shall not be returned to him without prior permission of this
court. So also without prior permission of this court the
applicant shall not apply for, on any ground, getting fresh
passport or any kind of travel document.
4.
The applicant/accused shall not directly or indirectly
make any inducement, threat or any promise to any person
acquainted with the facts of the case so as to dissuade him
from disclosing such fact to the Court or to any Police Officer
or tamper with the evidence.
NDPS RA 736/2018
5.
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The applicant/accused shall not indulge into any
criminal activities during the bail.
6.
Bail Application stands disposed off accordingly.
06.10.2018.
(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.
Typed on
: 06.10.2018.
Checked on : 06.10.2018.
Signed on
: 06.10.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
08.10.2018, 11.30 am.
Mrs. Supriya. S. Girkar
Name of the Judge (With Court HHJ Shri. U. M. Mudholkar
Room No.)
C.R. No.43
Date
of
Pronouncement
JUDGMENT/ORDER
of 06.10.2018.
JUDGMENT/ORDER
P.O. on
by 06.10.2018.
signed
JUDGMENT/ORDER uploaded on
08.10.2018.