8 & 21 (C) NDPS Act NCB Vs Mark Paul Obioma 06.11.2020 ...

SC No. 9589/16U/s: 8 & 21 (C) NDPS Act NCB Vs Mark Paul Obioma

06.11.2020

ORDER

1. Vide this order, I shall decide the bail application of accused Mark

Paul Obioma.

2. Prosecution case in brief that on receiving secret information on

12.05.2016 regarding the fact that accused Mark Paul Obioma flying to Goa

from Delhi suspected to carry narcotic drugs or psychotropic substances in

his hand baggage, a team was constituted. Accused was searched in

presence of ASI Ramesh Murlimani and ASI Raj Pandian, independent

witnesses and on search of grey yellow colour bag, one packet of pear soap

containing three white colour oval shaped capsules were recovered, and on

testing each same white colour substance found positive for cocaine. The

second pear soap packet was also opened and found to contain four oval

shaped capsules and each capsule was tested found to be of white colour

substance and gave positive result of cocaine, thereafter, the material of all

the 07 capsules were mixed homogeneously and total weight found to be

110 gm and sample of 05 gm each were drawn. The samples were sent to

CRCL. As per CRCL report, the sample gave positive result for Cocaine

Hydrochloride. The visa on the passport of accused was found fake and on

completion of investigation, complaint was filed.

3. Ld. Counsel for accused submitted that accused is falsely implicated

in this case and languishing in jail since 12.05.2016. Ld. counsel submits

that the Standing orders 1/88 & 1/89 are mandatory and this can be

inferred from the observation of case titled Union of India & Ors. Vs Bal

Mukund & Ors. (2009) 12 SCC 1611. Ld. counsel submits that cocaine

shown to be recovered from 07 capsules wrapped in transparent polythene

found inside two pear soap packets from the bag carried by accused. Ld.

counsel submits that after testing of each capsule, which gave positive test

for cocaine, they were homogeneously mixed but this is not the proper

procedure to take the samples. As per the terms of para 2.8 of Standing

order, 1/89 (or para 1.7e of Standing order 1/88) the represented samples

in duplicate from each individual packet should be taken. Once the

representative samples are withdrawn from each packing, only then the

representative samples are to be mixed together to make a composite whole.

Mixing homogeneously of the contents of the packet in one lot and then

drawing representative samples is not permissible under Standing order

1/88 dated 15.03.1988. Ld. counsels submits that as per clause 2.4 of

standing order no. 1/89 dated 13.06.1989 issued under sub section 52A of

NDPS Act, section II General procedure of samples in case of seizure of

single packet/container, one sample in duplicate is to be withdrawn.

Normally it is advisable to draw one sample from each package/container in

case of seizure of one packet/container. Ld. counsel submits that as per the

mandate of judgment of Delhi High Court titled as Amani Fidel Chris Vs

NCB, Crl. Appeal no. 1027/2015 dated 13.03.2020 transferring the powder

of 07 capsules in polythene and taking two samples, and sending the

samples to FSL caused grave prejudice to the case of accused as it could not

be ascertained whether all the 07 capsules contained narcotic drugs or not.

Ld. counsel submits that Apex Court in case titled Union of India Vs Mohan

Lal & Ors. 2016 3 (SCC) 379 clearly discussed the law point of 52A. Ld.

counsel submits that however NCB failed to comply the mandatory

conditions under section 52A as mandated by this judgment as they had

neither done the sampling before Magistrate nor had done the disposal of

narcotic drug as per GSR 38 (e) dated 16.01.2015 which caused grave

prejudice to accused. Ld. counsel submits that Delhi High Court in case

titled Ranjeet Sahu Vs State, Bail Application No. 1965/2020 dated

04.09.2020 has granted bail to the accused as the procedure prescribed

under 52A for drawing of samples and standing orders are not complied. Ld.

counsel submits that the procedure adopted by the NCB for drawing

samples neither confirmed the procedure u/s 52A NDPS Act nor under the

standing orders, and due to non compliance of stricter provisions by the

prosecution, the accused able to create reasonable doubt, as part of his

defence to rebut the presumption, therefore accused be entitled to be

released on bail.

4. Ld. SPP for the NCB submitted that during investigation the samples

were drawn according to law. As per standing instructions no. 1/88 when

packets/container seized together are of identical size and weight bearing

identical markings and contents of each packet give identical result on

colour test conclusively indicating that the packages may be bunched in the

lots of 10 packages/containers and from each lots of packages/containers,

one sample in duplicate may be withdrawn. Ld. SPP submits that there is no

infirmity in taking the samples. Ld. SPP submits this procedure is endorsed

by Apex Court in case titled Sumit Tomar Vs State of Punjab, Crl. Appeal No.

16901691/2012 dated 19.10.2012. Furthermore Apex Court in case titled

Khet Singh Vs Union of India, Crl Appeal No. 31/2000 dated 20.03.2002 held

that the standing instructions / order no. 1/88 & 1/89 are not having force

of law. Ld. SPP further submits that clause (a) of sub section (2) of Section

52A NDPS Act clearly speaks about certifying the correctness of inventory so

prepared, clause (b) speaks about taking photographs in presence of

Magistrate and clause (c) speaks about allowing the drawl of representative

samples or certifying the correctness of any list of samples to be withdrawn,

therefore the proceedings u/s 52A NDPS Act is only meant for purpose of

disposal of seized and recovered contraband and not for drawing of

samples. Ld. SPP submits that at the time of disposal proceedings u/s 52A

(2) (c) NDPS Act, Magistrate may direct prosecution to draw sample, so that

it could be established in future as to what substance was disposed of

besides certification of inventory. Ld. SPP submits that there is a recovery of

commercial quantity of cocaine thus definite bar u/s 37 NDPS Act over

grant of bail. Ld SPP submits that mere incarceration in jail is no ground to

release the accused on bail. Furthermore accused is foreign national and

there is all likelihood that if he be released on bail, he may abscond from

trial in this case.

5. Ld. counsel for accused submitted that the judgment of Khet Singh

(supra) could not be taken into consideration because High Court in Amani

Fidel Chris (supra) held that Bal Mukund (supra) accords primacy to the

manner of sampling, especially where the allegedly contraband narcotic is

contained in more than one bag/parcel to Khet Singh as pronounced by

three judges. Ld. counsel submits that there are serious non compliance by

the prosecution therefore accused be entitled to be released on bail who is

in custody for more than 04 years.

6. Heard. Record perused.

7. Apex Court in State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673,

the Court while taking note of Section 37 of the Act held that "negation of

bail is the rule and its grant an exception under Section 37 of the Act and

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 accused is not guilty of the offences with which he is charged and

further that he is not likely to commit any offence while on bail".

The position stands reiterated in Sami Ullaha v. Superintendent,

Narcotic Central Bureau, (2008) 16 SCC and Union of India v. Rattan Mallik

alias Habul, (2009) 2 SCC 624 wherein the Apex Court further clarified that

when a prosecution/conviction is for an offence under a special statute and

that statute contains specific provisions for dealing with matters arising

thereunder, including an application for grant of bail, such provisions

cannot be ignored while dealing with such an application and observed

that :

"9. The broad principles which should weigh with the Court in grantingbail in a nonbailable offence have been enumerated in a catena of

decisions of this Court and, therefore, for the sake of brevity, we do notpropose to reiterate the same. However, when a prosecution/convictionis for offence(s) under a special statute and that statute contains specificprovisions for dealing with matters arising thereunder, including anapplication for grant of bail, these provisions cannot be ignored whiledealing with such an application."

Apex Court in case titled State of Kerala Vs. Rajesh Crl. Appeal No.

154157/2020 dated 24.01.2020 observed as under:

18. The jurisdiction of the Court to grant bail iscircumscribed by the provisions of Section 37 of the NDPSAct. It can be granted in case there are reasonable groundsfor believing that accused is not guilty of such offence, andthat he is not likely to commit any offence while on bail. It isthe mandate of the legislature which is required to befollowed. At this juncture, a reference to Section 37 of the Actis apposite. That provision makes the offences under the Actcognizable and nonbailable. It reads thus:

“37. Offences to be cognizable and nonbailable.—(1)Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall becognizable;

(b) no person accused of an offence punishable for [offencesunder section 19 or section 24 or section 27A and also foroffences involving commercial quantity] shall be released onbail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity tooppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, thecourt is satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence and that he isnot likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b)of subsection (1) are in addition to the limitations under theCode of Criminal Procedure, 1973 (2 of 1974), or any otherlaw for the time being in force on granting of bail.”(emphasis supplied)

19. This Court has laid down broad parameters to be

followed while considering the application for bail moved bythe accused involved in offences under NDPS Act. In Union ofIndia Vs. Ram Samujh and Ors. 1999(9) SCC 429, it hasbeen elaborated as under:

“7. It is to be borne in mind that the aforesaid legislativemandate is required to be adhered to and followed. It shouldbe borne in mind that in a murder case, the accused commitsmurder of one or two persons, while those persons who aredealing in narcotic drugs are instrumental in causing deathor in inflicting deathblow to a number of innocent youngvictims, who are vulnerable; it causes deleterious effects anda deadly impact on the society; they are a hazard to thesociety; even if they are released temporarily, in allprobability, they would continue their nefarious activities oftrafficking and/or dealing in intoxicants clandestinely.Reason may be large stake and illegal profit involved. ThisCourt, dealing with the contention with regard topunishment under the NDPS Act, has succinctly observedabout the adverse effect of such activities in Durand Didier v.Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] asunder:

24. With deep concern, we may point out that the organisedactivities of the underworld and the clandestine smuggling ofnarcotic drugs and psychotropic substances into this countryand illegal trafficking in such drugs and substances have ledto drug addiction among a sizeable section of the public,particularly the adolescents and students of both sexes andthe menace has assumed serious and alarming proportions inthe recent years. Therefore, in order to effectively control anderadicate this proliferating and booming devastating menace,causing deleterious effects and deadly impact on the societyas a whole, Parliament in its wisdom, has made effectiveprovisions by introducing this Act 81 of 1985 specifyingmandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market,Parliament has provided that the person accused of offences underthe NDPS Act should not be released on bail during trial unlessthe mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is notguilty of such offence; and

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(ii) that he is not likely to commit any offence while on bail aresatisfied. The High Court has not given any justifiable reason for notabiding by the aforesaid mandate while ordering the release of therespondentaccused on bail. Instead of attempting to take a holistic viewof the harmful socioeconomic consequences and health hazards whichwould accompany trafficking illegally in dangerous drugs, the courtshould implement the law in the spirit with which Parliament, after duedeliberation, has amended.”

20. The scheme of Section 37 reveals that the exercise of power togrant bail is not only subject to the limitations contained underSection 439 of the CrPC, but is also subject to the limitationplaced by Section 37 which commences with nonobstante clause.The operative part of the said section is in the negative form prescribingthe enlargement of bail to any person accused of commission of anoffence under the Act, unless twin conditions are satisfied. The firstcondition is that the prosecution must be given an opportunity tooppose the application; and the second, is that the Court must besatisfied that there are reasonable grounds for believing that he is notguilty of such offence. If either of these two conditions is not satisfied,the ban for granting bail operates.

21. The expression “reasonable grounds” means something morethan prima facie grounds. It contemplates substantial probable causesfor believing that the accused is not guilty of the alleged offence. Thereasonable belief contemplated in the provision requires existence ofsuch facts and circumstances as are sufficient in themselves to justifysatisfaction that the accused is not guilty of the alleged offence. In thecase on hand, the High Court seems to have completely overlooked theunderlying object of Section 37 that in addition to the limitationsprovided 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 bailunder the NDPS Act is indeed uncalled for.

22. We may further like to observe that the learned Single Judge hasfailed to record a finding mandated under Section 37 of the NDPS Actwhich is a sine qua non for granting bail to the accused under the NDPSAct.

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23. The submission made by learned counsel for the respondents that inCrime No. 14/2018, the bail has been granted to the other accusedpersons(A1 to A4), and no steps have been taken by the prosecution tochallenge the grant of postarrest bail to the other accused persons, is ofno consequence for the reason that the consideration prevailed upon theCourt to grant bail to the other accused persons will not absolve the actof the accused respondent(A5) from the rigour of Section 37 of theNDPS Act.

8. The accused who is foreign national was apprehend while flying from

Delhi to Goa and from his search, 07 identical oval shaped capsules were

recovered which on opening found to contain same colour white substance

tested positive for cocaine. Each capsule was tested and thereafter

homogeneously mixed and this procedure was found as due compliance in

case titled Sumit Tomar Vs State of Punjab, Crl. Appeal No. 16901691/2012

dated 19.10.2012. The contention of Ld. counsel that this judgment is not

statement of law because there is no discussion on the standing orders in

this judgment however this contention cannot be considered by this court at

this stage. Furthermore, Delhi High Court in a recent judgment titled

Santini Simone Vs Department of Customs, Crl Appeal No. 1088/2017 dated

05.10.2020 in paragraph 83 held that the prosecution had failed to establish

that the content of each packet was separately tested however in present

case prima facie the each packet were separately tested. Furthermore, any

infirmity in the procedure which do not go into the root of the matter

cannot be appreciated at this stage. The recovery of contraband is

commercial in nature thus there is definite embargo u/s 37 NDPS Act and

court must be satisfied that there are reasonable grounds for believing that

accused is not guilty of the offences with which he is charged and further

that he is not likely to commit any offence while on bail. It cannot be

inferred at this stage there are reasonable ground to believe that accused is

not guilty of the offence and is not likely to commit any offence while on

-9-

bail. Mere incarceration in jail is no ground to release the accused on bail.

In present facts and circumstances, I do not find any ground to release the

applicant/accused Mark Paul Obioma on bail. Hence the present application

is dismissed.

9. Application disposed of accordingly.

10. Copy of the order be given dasti as well as be sent to accused Mark

Paul Obioma in jail. Order be uploaded on Delhi District Courts website.

(Ajay Kumar Jain) Spl. Judge, NDPS/N. Delhi

06.11.2020

SC No. 9589/16U/s: 8 & 21 (C) NDPS Act NCB Vs Mark Paul Obioma

06.11.2020

At 1pm

Matter heard through video conferencing.

Present: Sh P C Aggarwal, Ld. SPP for NCB through video conferencing.

Sh Bhanu Kaushik along with Sh Hasim Alam, Ld. counsels for

applicant/accused Mark Paul Obioma through VC.

Vide separate order, the bail application of accused Mark Paul

Obioma is dismissed. The application is disposed of accordingly.

Copy of the order be given dasti as well as sent to accused

Mark Paul Obioma in jail.

Copy of the order be uploaded on the website of New Delhi

District.


06.11.2020

FIR No. 322/2020PS Sarojini Nagar U/s 20 NDPS Act & 34 IPCState Vs Jugal Kishore

06.11.2020


Present: Sh. Ravindra Kumar, Ld. Additional PP for the State

through video conferencing.

Sh Arbind Kumar Garg, Ld. counsel for applicant/accused

Jugal Kishore through VC.

Reply filed. Copy supplied.

List this application for arguments on 11.11.2020.


District.


06.11.2020

FIR No. 322/2020PS Sarojini Nagar U/s 20 NDPS Act & 34 IPCState Vs Shyam Sunder

06.11.2020




Sh Arbind Kumar Garg, Ld. counsel for applicant/accused

Jugal Kishore through VC.

Reply filed. Copy supplied.



District.


06.11.2020

FIR No. 50/2020PS Spl Cell U/s 22/29 NDPS Act State Vs Puneet Arora & Ors.

06.11.2020




Clerk of Ld. counsel for applicant/accused Vinod Kumar

through VC.

Clerk requested short adjournment as main counsel is not

available today.

Accordingly, list this application for 23.11.2020.


District.


06.11.2020

FIR No. 76/2020PS B K RoadU/s 21 NDPS Act State Vs Arsad Khan

06.11.2020


Present: Sh. Ravindra Kumar, Ld. Additional PP for the State along

with IO SI Praveen through video conferencing.

Sh Ajay Verma, Ld. counsel for applicant/accused Arsad Khan

through VC.

IO filed reply however copy not supplied to the counsel for

accused.

Let copy of reply be supplied to counsel for accused.



District.


06.11.2020

FIR No. 64/18PS Spl Cell State Vs Ashish Sharma & Ors.

06.11.2020


Present: Sh. Ravindra Kumar, Ld. Additional PP for the State along

with IO Insp Anuj Kumar through video conferencing.

Sh Anshul Bareja, Ld. counsel for accused persons/applicants

namely Parveen Saini and Rajender through VC.

At request of Ld. defence counsel, list this application on the

day of physical hearing for 25.11.2020.

IO is also directed to remain present on the said date.


District.


06.11.2020

SC No. 135/2020NCB Vs Muhammad Bilal & Ors.

06.11.2020


Present: Sh P C Aggarwal, Ld. SPP for NCB through video conferencing.

Sh Y K Saxena, Ld. counsel for applicant Smt Musarraf along

with applicant through VC.

Ld. SPP for NCB requested some more time to file reply to

verify the documents of the property which is located at Meerut.

Accordingly, list this application for reply and arguments on

15.12.2020. In the meanwhile, no coercive steps to be taken against said

property.

Copy of the order be given dasti.


District.


06.11.2020

SC No. 8867/16NCB Vs Athar Parvez & Ors.

06.11.2020


Present: Sh. Rajesh Manchanda, Ld. SPP for NCB through VC.

Sh Y K Saxena, Ld. counsel for applicant/accused Viqar Ahmad

through VC.

At request, list this application for 07.11.2020.


District.


06.11.2020

FIR No. 182/2020State Vs. Moulana Farooque & Anr.PS Special Cell

06.11.2020

Present: Sh. Ravinder Kumar, Ld. Addl. PP for the State through VC.

IO not present.

Ld. Addl. PP submits that NBW against the accused Mohd.

Kashim Ali and Maulana Farooque have been executed however IO is not

available today and requested that the matter be adjourned.

Accordingly, list this application for 07.11.2020.

Order be uploaded on Delhi District Courts website.

(Ajay Kumar Jain) Special JudgeNDPS

New Delhi/06.11.2020

FIR No. 09/19State Vs. Sunil Kumar & ors.PS Special Cell

06.11.2020


Ms. Sushma Sharma, Ld. Counsel for applicant/accused

through VC.

Reply not filed. Ld. Addl. PP submits that IO seeks some more

time to file reply.

List this application for reply and arguments on 18.11.2020.




FIR No. 28/12State Vs. Arun Kumar & ors.PS Special Cell

06.11.2020


Sh. A.K. Sahu, Ld. LAC for applicant/accused through VC.

Reply not received.

List this application for reply and arguments on 12.11.2020.




Bail ApplicationState vs. Yudhveer @ Narender

FIR No.207/2019U/s 3/4 MCOC Act

PS: Special Cell

06.11.2020

Proceedings conducted through VC from residence.

Present : Sh. Ravi Drall, Counsel for applicant/accusedYudhveer @ Narender, through VC.Sh. S.K. Tripathi, Substitute Addl. PP for State.

Reply received.

Ld. P.O. is on half day leave.

Renotify for arguments on the bail application on

09.11.2020.

(Anil Antil)1st Link/Additional Sessions Judge-04

Patiala House Courts, New Delhi 06.11.2020 (Through VC)

Bail ApplicationState vs. Abdul Manan

FIR No.03/2013PS: Special Cell

06.11.2020


Present : Sh. S.K. Tripathi, Substitute Addl. PP for State.Sh. Nishant Rana, Counsel for applicant/accusedAbdul Manan, through VC.


Adjournment is prayed.

As prayed, re-notify for arguments on the bail

application on 12.11.2020.



Bail ApplicationState vs. Hasan Hussain

FIR No.11/2015PS: Crime Branch

06.11.2020


Present : Sh. Syed Nooruzzama, Counsel for applicant/accused Hasan Hussain, through VC.Sh. S.K. Tripathi, Substitute Addl. PP for State.


Reply to the bail application not received.

Renotify for reply and arguments on the bail application

on 07.11.2020.



8 & 21 (C) NDPS Act NCB Vs Mark Paul Obioma 06.11.2020 ...

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