Point of Law: Narcotic substance – Bail Application dismissed – No Merits - Contraband and samples along with CFSL form were kept in Moharar Malkhana and relevant entries in this regard were made in Register and witnesses have deposed in relation thereto.

JUDGMENT :

1. By this petition, petitioner seeks regular bail in case FIR No.109/2015 under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and Section 14 of the Foreigners Act, registered at PS Crime Branch, Delhi.

2. Learned counsel for the petitioner contends that the petitioner entered India on a valid visa, thus an offence under Section 14 of the Foreigners Act is not made out. As regards offence punishable under Section 29 NDPS Act is concerned, learned counsel for the petitioner contends that even if the alleged recovery is made from the hand or vehicle however, personal search of an accused is taken, Section 50 of the NDPS Act will be applicable and since in the present case no notice under Section 50 NDPS Act was given, the petitioner is entitled to be released on bail on this ground itself. No recovery of any narcotic substance was effected from the personal search of the petitioner and on the basis of a box of 2 feet length, 1.5 feet width and 1 feet height carried by the co-accused Agbahia Ikenna under his armpit which is highly improbable, the petitioner has been falsely implicated. There is no evidence in the form of telephonic conversation or otherwise to link the petitioner with the main accused. The petitioner has been languishing in jail for the last five years and eight months and the trial is likely to take some time. Further as per the case of the prosecution, the entire alleged contraband was collected together and thereafter samples were drawn which is contrary to the law laid down by the Supreme Court, this Court and para-2.8 of the Standing Order No.1/89. Only seven witnesses of the prosecution have been examined till date and seven more witnesses are still required to be examined. Reliance is placed on the decisions reported as AIR 2014 SC 1384 State of Rajasthan vs. Parmanand & Anr.; 2011 (5) SCC 123 Ashok @ Dangra Jaiswal vs. State of M.P.; 2018 (252) DLT 748, Earnest @ Aik vs. State; 2015 SCC OnLine Del. 9860/MANU/DE/1748/2015 Edward Khimani Kamau vs. The Narcotics Control Bureau; 2012 (191) DLT 403 Basant Rai vs. State; AIR 2005 SC 4248 Amarsingh Ramjibhai Barot vs. State of Gujarat; and N.Ayyappan vs. State, Bail Appln. 405/2005 decided on 21st April, 2005.

3. It is further contended that there is violation of Section 52A(2) (a) of NDPS Act in so far as the FIR was registered on 24th July, 2015 when the alleged samples were taken however, they were received by PW-4 on 27th July, 2015 after a considerable delay of three days. Some of the witnesses stated that cream colour powder was recovered; whereas the other stated that light brown powder was recovered; hence there are major contradictions in the testimony of the witnesses. Section 57 of NDPS Act has also not been complied with as ACP Ravinder Tyagi PW-7 was not in a position to inform as to when the special report was placed before him by the Reader.

4. Learned APP for the State has taken this Court through the status report as also to the statements of the witnesses filed along with the charge sheet and states that there is no violation of the mandatory provisions of Section 50 NDPS Act or Section 57 or Section 52A(2) (a) NDPS Act. The petitioner and the co-accused Agbahia Ikenna were apprehended along with the parcel containing heroin and all mandatory provisions were complied with.

5. Case of the prosecution in the charge sheet is that on 23rd July, 2015 SI Shiv Darshan of Narcotics Cell, Crime Branch received a secret information that two African nationals namely Anthony and Ikenna, residing somewhere in Delhi and exporting heroin through parcel would be coming between 10.00 PM to 10.30 PM on that day near Government School, Jain Road, Uttam Nagar, Delhi along with a parcel of heroin and if raid is conducted both of them can be apprehended with the parcel of heroin. SI Shiv Darshan shared this information with Inspector Vivek Pathak, who shared the same with ACP, Narcotics Cell Shri Ravinder Kumar Ty