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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJNISH BHATNAGAR, J.
Nastor Farirai Ziso - Appellant
Versus
NCB - Respondent
Bail Appln. 1960 of 2020
Decided on : 20-04-2021
Narcotic Drugs And Psychotropic Substances Act, 1985- Section 9A/25A- Criminal Procedure Code, 1973 - Section 439 – Bail - on the basis of secret information, the petitioner/accused was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage-Controlled substance – Meaning of – Whether petitioner/accused who is a foreign national is entitled to be released on bail, if she is able to make out a case in her favour.
Finding of the Court:
"Controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention, by notification be a controlled in the official Gazette, declare substance- it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act.
Result :Allowed
ORDER :
RAJNISH BHATNAGAR, J.
1. By way of this order, I shall dispose of the present petition filed under Section 439 Cr.P.C. on behalf of the petitioner for grant of regular bail in SC No. 411 of 2019 arising out of FIR No. VIII/27/DZU/2019 Under Section 9A/25A of the Narcotic Drugs And Psychotropic Substances Act, 1985, PS. Narcotics Control Bureau (DZU), New Delhi.
2. Brief facts of the case that on 13.07.2019, on the basis of secret information, the petitioner/accused was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage. The petitioner/accused in her statement u/s 67 N.D.P.S. Act admitted the recovery and disclosed that she came to India on request of her friend and the bags concealing the said bags was given by her friend IKE.
3. I have heard the Ld. counsel for the petitioner, Ld. Sr. Standing Counsel for the respondent (NCB) and perused the records of this case.
4. It is submitted by the Ld. counsel for the petitioner/accused that the petitioner is in custody since her date of arrest on 13.07.2019 and the charges have already been framed and the long incarceration of the petitioner would not serve any fruitful purpose. It is also submitted that the alleged recovered substance i.e. Pseudo-Ephedrine is a controlled substance and the bar under section 37 of the NDPS Act which provides for bar for granting bail will not be attracted in the present case as the same is applicable only in offences involving commercial quantity which refers to only narcotic drug and psychotropic substance and the substance alleged to be recovered from the petitioner is neither a narcotic drug nor psychotropic substance and is a controlled substance under the NDPS Act. He further submits that NCB officials after conducting the investigation, have filed the police report before the Ld. Trial Court and the investigation has been completed, and the petitioner is no more required by the investigating agency and the present matter is at the initial stage of prosecution evidence therefore, there is very likelihood that the conclusion of the trial shall take time. He further submitted that the petitioner is a respectable foreign citizen and there is no possibility of petitioner fleeing from justice as her passport was seized at the time of investigation by the IO at NCB on the date of arrest and therefore there is no chance of the petitioner leaving India and the petitioner does not have any criminal antecedents and is not previous convict in any case.
5. Ld. Counsel for the petitioner has relied upon following Judgments:-
Gudikanti Narasimhulu and Others vs. Public Prosecutor 1978 AIR SC 429.
Rajesh Sharma v Directorate of Revenue Intelligence 2018 SCC Del 12372 Decided on 14.8.2018.
Sri. Vastavayi Siva Ramakrishna Paratna Varma vs. The State of Karnataka criminal Petition no. 200880/2017 Decided on 16.8.2017.
Madderia Shankar vs State of Karnataka Criminal Petition No. 200811 /2017 Decided on 1.08.2017.
Manoj Kumar Vs Director of Revenue Intelligence 2015 BAIL.A.257/2015 Decided on 03.03.2015 SCC 7830 (2015) 219 DLT 112.
Niranjan Jayantilal Shah v. Directorate of Revenue Intelligence Bail Appln. 1202/2013 2013 SCC Online Del 4608.
G. M. Akbar Ali V. The Intelligence Officer Crl. O.P. No. 26320 of 2010 Decided on 19.11.2010.
Rafael Palafox Garcia v The Union of India and Anr. Criminal Application no. 2015/2008.
Lambert Kroger vs. State 2000 SCC Online Del 208.
Sartori Livio vs. State 2005 (80) DRJ 482.
Nasimjon Komlov v. Customs CRLM(M) No. 2038/2000 Decided on dated 31.07.2000.
6. On the other side, while opposing the bail of the petitioner, Ld. Sr. Standing Counsel submitted that during her voluntary statement the accused was within her knowledge and had deposed under section 67, NDPS Act and admitted that the said drugs which were recovered from her possession was given to her by IKE which had to be handed over to Jonathan at Zambia. It is also submitted by Ld. Sr. Standing Counsel
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