Point of Law: NDPS Act – Recovery of contraband - Rejection of Bail - commercial quantity of the contraband and therefore, rigors of Section 37 NDPS Act are applicable - statements recorded U/s 67 of the NDPS Act are not exculpatory.

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 S.C. No. 8522/2016, NCB Vs. Sita @ Christina Rozaria @ Priya Mandal & Anr., U/s 8, 21, 22, 23 & 29 NDPS Act.

2. Briefly stated, the facts of the case are that on the basis of secret information, two parcels booked under Airway Bill No. 7185476351 and 7185476362 destined from New Delhi to Canada were detained at DHL Courier Company at Kirti Nagar. The said parcels were booked by co-accused Sita @ Priya Mandal @ Christina Rozaria at the instance of the present petitioner David Collins. Both the parcels were examined and 245 grams and 425 grams of Heroin respectively were recovered. Thereafter search was also conducted at the residence of present petitioner which also resulted in to the recovery of 12 grams Cocaine and 20 gm Methaempthaine.

3. I have heard the Ld. counsel for the parties and perused the records of this case.

4. Ld. counsel for the petitioner has argued on the lines of the bail application. It is submitted that there is no evidence to show that 12 grams Cocaine and 20 gm Methaempthaine was recovered from the residence of the petitioner. It is further submitted by the Ld. counsel for the petitioner that the recovered quantity from the petitioner is not a commercial quantity. It is further submitted that the petitioner has no role in booking the parcels which were booked by accused No. 1 who claimed herself to be the wife of the petitioner. He further submitted that the accused is in J.C. since 26.07.2015. It is further submitted by the counsel for the petitioner that the petitioner has no concern with co-accused, so any recovery alleged to have been effected from her at her instance cannot be attributed to the petitioner. He further submitted that the petitioner is not in conspiracy with co-accused. It is further submitted by the Ld. counsel for the petitioner that notice U/s 50 of the NDPS Act is a defective notice which in itself vitiate the entire proceedings. It is further submitted by the counsel for the petitioner that the prosecution cannot be allowed to count the weight of Heroin recovered from the co-accused against the petitioner. He further submitted that the petitioner is having clean past antecedents. The counsel for the petitioner has relied upon:

(a) Amar Singh Ramjibhai Barot vs State of Gujarat (19 September, 2005) Supreme Court of India, Appeal (Crl.) 1218 of 2005

(b) Dinesh Singh Dadhwal Vs State of Punjab (15 October, 2012) High Court of Punjab and Haryana at Chandigarh, CRM-M No. 23217 of 2012 (O&M).

(c) Raj Karan Singh @ Rajan Vs State of Punjab (29 June, 2015) High Court of Punjab & Haryana at Chandigarh, CRM-M-17321 of 2015.

(d) Vicky Kaur vs State of Punjab (13 August, 2018) CRR No. 1785 of 2018 (O&M) High Court of Punjab and Haryana at Chandigarh.

5. On the other hand, it is submitted by the Ld. counsel for the respondent that after the recovery of contraband at DHL Courier office, search was conducted at the residence of the petitioner which resulted in recovery of 12 grams Cocaine and 20 gm Methaempthaine. It is further submitted by the Ld. counsel for the respondent that co-accused Sita @ Priya Mandal gave voluntary statement U/s 67 of the NDPS Act wherein she has categorically stated that she had booked the parcels in questions after using her own ID documents at the instance of the petitioner/applicant. It is further submitted by the Ld. counsel for the respondent that she also admitted her involvement in the drug peddling with the petitioner. It is further submitted by the Ld. counsel for the respondent that during the enquiry the petitioner also tendered his voluntary statement U/s 67 of the NDPS Act and disclosed that the parcels were booked at his instance. It is further submitted by the Ld. counsel for the respondent that the presumption U/s 35 and 54 NDPS Act are also attracted against the petitioner/accuse