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IN THE HIGH COURT OF DELHI AT NEW DELHI
Prateek Jalan, J.
Ejike Jonas Orji - Applicant
Versus
Narcotics Control Bureau – Respondents
Bail Appln. 997 of 2022
Decided On : 13-06-2022
Code of Criminal Procedure, 1973 - Section 439 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c), 20, 21, 22, 23 and 67– Narcotic substances - Grant of Bail - “Thread piece rolls” - A secret information was received by NCB to effect that a parcel lying at DHL Express Pvt. was suspected to contain narcotic substances - An NCB team reached DHL office in presence of two independent witnesses, the parcel was opened, and contained ladies’ clothes and accessories, including a packet of 12 “thread piece rolls”. One of thread piece rolls was found to have a cavity, which contained an off white coloured powder in a roll. A small quantity of powder was tested with help of field-testing kit, and gave positive result for heroin. Remaining 11 thread piece rolls were thereafter opened, and contained similar cavities with off white coloured powder. The off white coloured powder from each of 11 thread piece rolls was tested with field-testing kit, and it also gave positive result for heroin - Prosecution relies upon extra judicial confessions of accused and of another co- accused, recorded under Section 67 of Act. (Para 22)
Finding of the court :
The undisputed position is that, although applicant himself is a foreign citizen, he is married to a citizen of India, and has a child who is also resident in New Delhi. I was informed during course of hearing that his address in Delhi has also been verified by the IO. The applicant can, therefore, be seen to have roots in society, despite his citizenship status - Applicant has been in custody for eight years already, six PWs are yet to be examined, and on consideration of the various factors noted above, including the provision of Section 37 of the Act, as interpreted in the above judgments of the Supreme Court and this Court, court view that the applicant is entitled to be released on bail – Court directed that the applicant herein be admitted to bail in relation to Sessions Case.
Result : Application disposed of
JUDGMENT :
1. By way of this application under Section 439 of the Code of Criminal Procedure, 1973 [hereinafter, “CrPC”], the applicant seeks bail in connection with Sessions Case No. 9080/2016, registered by the Narcotics Control Bureau, Delhi Zonal Unit, Government of India [hereinafter, “NCB”], under Sections 8(c), 20, 21, 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter, “the Act”]. The applicant is facing trial in the aforesaid case before the Court of the learned Special Judge, NDPS Act, Patiala House Courts, New Delhi [hereinafter, “the Special Court”].
Factual background
2. The prosecution case against the applicant may be summarized as follows :
B. An NCB team reached the DHL office at 2:30 PM on 26.05.2014. In the presence of two independent witnesses, the parcel bearing AWB No. 5546780993 was opened, and contained ladies’ clothes and accessories, including a packet of 12 “thread piece rolls”. One of the thread piece rolls was found to have a cavity, which contained an off white coloured powder in a roll. A small quantity of the powder was tested with the help of field-testing kit, and gave positive result for heroin. The remaining 11 thread piece rolls were thereafter opened, and contained similar cavities with off white coloured powder. The off white coloured powder from each of the 11 thread piece rolls was tested with the field-testing kit, and it also gave positive result for heroin.
C. The powder from the 12 cavities, having the same colour, texture and properties, was thereafter mixed, and was transferred into a transparent plastic packet which was weighed on an electronic weighing machine, and came to weigh 200 grams.
D. Two samples of 5 grams each were drawn, and put in separate zip-lock pouches, which in turn, were put in separate white paper envelopes. The packets were sealed with the NCB seal, and signed by the Investigating Officer [hereinafter, “IO”], and the independent witnesses. The remaining 190 grams of heroin was kept in a separate transparent package in a white cloth, and similarly sealed and signed. The remaining stitching material was separately wrapped. The parcel contained the name of the consignor as Mr. Ashish Kanojia, 78, Block- C Duggal Colony, Khanpur, Delhi, 110062, and the consignee as Lisa Phombeh, Perry Town V, OA.A, Monrovia, Liberia, Post 1000, Liberia.
E. Notices under Section 67 of the Act were issued to both the independent witnesses and their statements were taken on 09.06.2014. Two other witnesses, Mr. Shamsher Singh of ANS Express Services Pvt. Ltd. and Mr. Arjun Pal Singh of Balaji Courier & Cargo, B-7 Vasant Kunj, New Delhi, were also issued notices under Section 67 of the Act, and they made their statements on 04.07.2014 and 14.08.2014 respectively.
F. Mr. Ashish Kanojia, the consignor of the parcel, was also issued a notice under Section 67 of the Act, and made a voluntary statement on 01.06.2014, The name of the consignor appears to be wrongly noted as “Ashok Kanojia” in paragraph Nos. 20 and 21 of the chargesheet filed by the NCB, which has been placed on record..
G. On the basis of his statement, an information was then prepared by the IO that the parcel belonged to one Mr. Jonas Orji, who is a Nigerian national, and is a resident at House No. 363, Dhaka Johar, near Parmanand Colony, New Delhi [hereinafter, “the property”]. It was stated that Mr. Jonas Orji had called Mr. Ashish Kanojia again on 02.06.2014 for delivery of another parcel at his residence. An apprehension was recorded that Mr. Jonas Orji might be involved in drug trafficking, and if
Point of Law : There is no assertion or indication in the Status Report that the accused has delayed the proceedings of the trial.
The right to speedy trial under Article 21 can override stringent bail conditions in the NDPS Act, especially when an accused has faced prolonged incarceration without trial.
The court found that the prolonged incarceration of the petitioner and the failure to establish conscious possession warranted the grant of bail under the NDPS Act, balancing his right to liberty and....
Prolonged incarceration without conviction violates the constitutional right to a speedy trial, warranting bail for undertrials as per established precedents.
Prolonged pre-trial detention without a clear and prima facie case warrants bail under the NDPS Act, emphasizing the right to personal liberty.
The court reinforced that bail serves to protect an individual's personal liberty, particularly when prolonged detention without trial raises constitutional concerns under Article 21, emphasizing the....
Prolonged incarceration without trial violates the right to personal liberty under Article 21, necessitating the grant of bail even under stringent provisions like the NDPS Act if no reasonable groun....
Prolonged incarceration and lack of evidence necessitate bail, emphasizing personal liberty and the right to a speedy trial under Article 21 of the Constitution.
Bail – Section 436-A of Cr.P.C. does not exclude offences under NDPS Act – Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21.
Bail is granted when no prima facie case exists against the accused, emphasizing the right to personal liberty under Article 21, especially during prolonged incarceration and delay in trial.
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