Point of Law: Narcotic Drugs - Bail Application dismissed - Heroin - Powers of High Court or Court of Session regarding bail - Power to grant bail is not only subject to limitations contained under S. 439 CrPC, but is also subject to limitation placed by S. 37 which commences with non obstante clause.

JUDGMENT :

SUBRAMONIUM PRASAD, J.

1. This petition under Section 439 Cr.P.C is for grant of bail to the petitioner in Case No. VIII/32/DZU/2019 registered at Narcotics Control Bureau, R.K. Puram, Delhi for offences under Sections 8(A)/21(C)/23(C)/29 of the NDPS Act.

2. The facts, in brief, leading to the filing of the instant petition are as under:

a) It is the case of the prosecution that on 17.08.2019, at about 11:30 AM, secret information was received that one person namely Noorzai Gul Amin is arriving by Ariana Airlines Flight No. FG-311 at Terminal-3, I.G.I Airport. He has swallowed narcotic drugs in the form of capsules. The said information was reduced into writing by the Investigating Officer. The note was put up before his superior officer. Accordingly, a team was formed to take necessary action. At the IGI Airport the said person was identified and intercepted. On enquiry Noorzai Gul Amin accepted that he had swallowed drug capsules. He was taken to Safdurjung Hospital, where the Doctor on duty confirmed about the presence of foreign body in the stomach of Noorzai Gul Amin. It is stated that the said Noorzai Gul Amin expelled 119 capsules through passage of stool on 20.08.2019. It is stated that the capsules were counted in the presence of independent witnesses, interpreter, Doctor on duty and the team of the NCB. The Doctor on duty tested each capsule and upon testing it was found that the capsules contained heroin. On weighing all the 119 capsules, it was found that Noorzai Gul Amir was carrying 770 Grams of heroin.

b) Notice under section 67 of NDPS Act was issued to Noorzai Gul Amin who gave voluntary statement in his native language Pashto which was translated by the Interpreter. In his voluntary statement Noorzai Gul Amin revealed that one person namely Naimatullah Mangal offered him Rs.50,000/- for carrying the drug capsules in his stomach and gave him 119 capsules of Heroin, which he swallowed. He also revealed that upon reaching India he had to hand-over the capsules to one person called Doctor about whom he does not know much. He revealed that Naimatullah Mangal gave him the mobile number of the said person which is 7290901992. He also revealed that Nimatullah Mangal would arrive in India on 21.08.2019 by KAM Airlines at Delhi Airport. Accordingly, preparations were made to intercept the said Nimatullah Mangal. On his arrival on 21.08.2019, Nimatullah Mangal was apprehended at IGI Airport.

c) Notice under section 67, NDPS Act was issued to Naimatullah Mangal, and in pursuance thereof he tendered his voluntary Statement accepting that the drug capsules swallowed by Noorzai Gul Amin had to be supplied to one Doctor @ Allah Noor (the petitioner herein) and one Hikmatullah Hikmati. Naimitullah Mangal revealed that he can identify the house of the petitioner herein. The petitioner was apprehended from his house at 137, F-Block, 3rd Floor, Lajpat Nagar-I, New Delhi. Search was conducted at his house. In the search, a mobile phone and some other articles were recovered. Notice under section 67 NDPS Act was issued to the petitioner herein. In his voluntary statement the petitioner herein revealed that the capsules were to be supplied to one Chinonso Stanly Alex who is living with one Goddy and 2-3 other Nigerians at House No. A-27, 1st Floor, Anand Vihar, Near Metro Pillar-595, New Delhi. Hikmatullah Hikmati also tendered his voluntary Statement in Pashto language confirming that the heroin was to be supplied to one Stanley Alex and some Nigerians.

d) The NCB Team reached House No. A-27, 1st Floor, Anand Vihar, and at the said premises Godday Nemonye along with other Nigerians were present. During search of the premises 3.4 Kgs. Heroin was recovered.

e) Hikmatullah Hikmati and the petitioner herein were arrested on 23.08.2019.

f) On 19.12.2019, Chinonso Stanley Okorie@ Chinonso Iwuozo, Brght Right @ Obina Oguchukwu, Collins Nnebolinsa Chiwetalu @ Chidi Nwankwu and Alex Edet Nelson@ Ifeanyi Nwafor surrendered in Deportation