Excerpt
The petition was filed by Mr Bobby Collin seeking regular bail. He was facing trial for committing the offences under Section 21/23 of the Narcotic Drugs and Psychotropic Substance Act 1985. (NDPS herein)
Facts
On 29.3.2015, reliable information of South African named Bobby Collin Anagor (petitioner herein) with Passport No. A 02601093 coming to Delhi was suspected of carrying narcotic drugs inside his body and the same was accumulated in his luggage. A Narcotic Bureau Investigation (NCB herein) team arrived at IGI Airport Terminal 3. Inquiries were made from IGI Airport customs officials and also with the Emirates Airway staff. On arrival of the flight passengers, passports were checked. When the petitioner reached the custom counter he was identified with his Passport No. and the secret information was shared with him. His luggage was physically checked by CISF but nothing got recovered.
During prosecution, the petitioner was offered tea and snacks but he refused to take that. On inquiry, he disclosed that he was carrying some capsules of drugs in his stomach. So he cannot eat or drink anything. Thereafter, a notice under Section 67 of the NDPS Act was served and he was taken to NCB Office with the team.
At the office, he gave a voluntary statement in his handwriting about swallowing drugs. Then he asked the NCB officials to take him to the hospital as he was feeling uneasy as the capsules of drugs have been inside his body for a long time. The NCB team after following all the protocols and taking all the necessary items for the field testing kit reached the Safdarjung Hospital. Pooran Singh and Rajeshwar Singh staff Safdarjung Hospital voluntarily agreed to be the witnesses to the search and seizure proceeding.
With Chief Medical Officer’s permission, Dr Kashika took an X-Ray and C.T Scan of the petitioner. The scan reports showed concealment of small capsules inside the petitioner’s body. Therefore, the petitioner was admitted to the emergency surgical ward for the removal of capsules from his body.
On 29.3.2015 and 30.03.2015, the petitioner passed out 65 oval-shaped capsules through stools. These capsules were washed and kept inside a polythene pack. On 30.03.2015 at 11:40 a.m he again underwent an X-Ray and C.T Scan. The report showed that no further capsule was seen inside his body but his body was kept under observation. On examination of capsules, it was found to be cocaine. All the packets were opened mixed and were kept in a transparent polythene packet. The total weight of the packet was 1.320 kg. Two samples of 5g each were packed separately for investigation. The entire procedure happened cordially.
The petitioner was arrested on 31.03.2015 and a complaint was filed under Section 21/23 of the NDPS Act in the trial court. The trial court dated 30.03.2016 charged him under Section 21(c) and 23 (c) of the NDPS Act. The trial court was in progress and out of 17 witnesses, 13 witnesses were examined and 3 were dropped and only 1 remained to be examined.
Petitioner’s Contention
The learned counsel representing the petitioner argued that the petitioner was behind the bars from the first day and the trial would take a long time to conclude and as a result, the prosecution case suffered from material and procedural infirmities. He also claimed that conditions stipulated under section 67 of the NDPS Act have not complied. Reliance was placed on Amani Fidel v. NCB Crl A. 1027/2015 where the Court held that if more than one container is found, the respondent is required to draw a sample from each of the individual containers. Additionally, reliance was placed on the case Union of India v. Bal Mukund, and Ors were in Standing instruction No. 1/88 had been referred. Another case Noor Aga v. State of Punjab and Anr wherein Standing Order 1/89 was considered. The counsel also took into the notice of public witness PW10 Puran Chand who during cross-examination stated that only 55 capsules were tested in his presence and no writing work was done.
He further stated that Section 50 of the NDPS Act had not been complied with as no Gazette Officer was called at the time of the search. Reliance was placed upon the decision of Hon’ble SC in Tofan Singh v. State of Tamil Nadu 2020 SSC OnLine SC 882. Further reliance was also placed on Bail Appln. 4165/2020, Ashwani v. The State, Bail Appln.191/2020 Uruakpa Ahmed v. State. Further, reliance was placed upon the decision of Edward Khimani Kamau Vs. The Narcotic Control Bureau for claiming bail.
Respondent’s Contention
The learned counsel representing the Narcotics Control Bureau claimed that if the petitioner was released on bail then there would be a chance of him jumping over the bail as he was a foreign national and was facing trial for illegal trafficking of contraband drugs in huge commercial quantities.
He also submitted that the petitioner underwent the procedure as per Section 50 of the NDPS Act. And the seizure and samples were recovered according to Section 67 of the NDPS Act. He took reliance on Sucha Singh and Anr. V. The State of Punjab and the State of Kerala and Ors. V. Rajesh and Ors. and argued that the SC in this case categorically interpreted and rigorously denied bail to the accused person as per Section 67 NDPS Act.
He further stated that the guidelines given in Standing Order No 1/88 and 1/89 have complied and no violation was caused. Lastly, he argued that the petition to be dismissed as the trial was on the verge of ending and also only one prosecution witness remaining to be examined.
Court’s Observation
The Court held that Section 67 of the Act was properly complied with as when the petitioner was disclosed of caring capsules, he was served with notice under Section 67. He then voluntarily asked the NCB officers to take him to the hospital. This was recorded as in writing by the petitioner himself.
In the process of taking the capsule out of the petitioner’s stomach till the examination of capsules, CSK Singh IO was present at the spot with the other two witnesses. Lastly, the Court observed that the petitioner had approached the court when the trial was at the fag end, and also only one witness was remaining for cross-examination. Thus, to conclude with other witnesses would not be worthwhile.
Court’s Decision
The Hon’ble Court dismissed the petition. Additionally, it said that pleas argued before this Court could also be agitated before the trial court at the time of final arguments.
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