Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 3785

IN THE HIGH COURT OF DELHI AT NEW DELHI
Vikas Mahajan, J.
Chinedu Patrick – Appellant
Versus
Narcotics Control Bureau – Respondent
Bail Appln. 3494 of 2021
Decided On : 04-09-2023

Advocates appeared:
Mr Vikas Gautam, Advocate, for the Petitioner.
Mr Utsav Singh Bains, SPP, for the NCB.

The main legal point established in this judgment is that the statement of a co-accused recorded under Section 67 of the NDPS Act is inadmissible as evidence. The court also emphasizes the importance of establishing a link between the accused and the contraband in order to apply the rigours of Section 37 of the NDPS Act.

Headnote:
NDPS Act - Sections 21(b), 22(c), 29, 37 - The court examines the provisions of the NDPS Act, including the sections related to possession, purchase, and sale of narcotic drugs and psychotropic substances. The court also considers the applicability of Section 37, which deals with the punishment for certain offences involving commercial quantities of contraband. The court concludes that Section 37 does not apply in this case due to the lack of evidence linking the petitioner to the contraband.
Fact of the Case:
The petitioner has filed a bail application seeking regular bail in a case under the Narcotics Drugs and Psychotropic Substances (NDPS) Act. The prosecution alleges that the petitioner was involved in the booking of a parcel containing narcotic drugs. The petitioner denies any involvement and argues that there is no evidence linking him to the contraband. The prosecution relies on the statement of a co-accused, which the petitioner argues is inadmissible. The court examines the evidence and concludes that there is no material to establish a link between the petitioner and the contraband. The court also considers the prolonged incarceration of the petitioner and grants him bail, subject to certain conditions.
Finding of the Court:
The court analyzes the evidence presented by the prosecution, including the statements of the co-accused and the alleged WhatsApp chats retrieved from the petitioner's mobile. The court finds that the WhatsApp chats do not establish a link between the petitioner and the contraband. The court also considers the admissibility of the co-accused's statement and concludes that it is inadmissible. The court further examines the applicability of Section 37 of the NDPS Act and determines that it does not apply in this case. Finally, the court takes into account the petitioner's clean antecedents and the likelihood of a long trial and grants him bail.
Ratio Decidendi: The court's decision is based on the lack of evidence linking the petitioner to the contraband, the inadmissibility of the co-accused's statement, and the non-applicability of Section 37 of the NDPS Act. The court also considers the petitioner's clean antecedents and the likelihood of a long trial in reaching its decision to grant bail.
Result: The court grants the petitioner regular bail, subject to certain conditions, including the furnishing of a valid visa, the deposit of the passport with the trial court, and the provision of the petitioner's mobile phone number and residential address to the investigating officer. The petitioner is also required to mark his attendance with the police and to remain present before the trial court on the scheduled hearing dates. The petitioner is prohibited from leaving the country without prior permission and from engaging in any criminal activity during the bail period.

JUDGMENT

Vikas Mahajan, J. (Oral)--The present petition has been filed under Section 439 CrPC seeking regular bail in case titled as "Narcotics Control Bureau vs. Vinay Kumar Ray & Ors." bearing Sessions Case No.427/2019 under Sections 21(b), 22(c) and 29 NDPS Act pending adjudication in the Court of Shri Sudhir Kumar Sirohi, Special Judge-NDPS, Patiala House Court, New Delhi.

2. The case of the prosecution is that a parcel bearing Airway Bill No. 7571728953, destined to New Zealand, containing nebulizers was suspected to conceal narcotic drugs/psychotropic substances. Accordingly, the said parcel was intercepted at DHL Express, Rama Road, Kirti Nagar, New Delhi. Upon search of the parcel, it was revealed that the said parcel was bearing the name of Vinay Kumar Ray as the consignor and M/s Sarah Eaglestor as consignee. From the said parcel, 390 gms. of Amphetamine, a psychotropic substance, was recovered, which admittedly is a commercial quantity.

3. The learned counsel for the petitioner submits that the statement of co-accused Vinay Kumar Ray was recorded under Section 67 of the NDPS Act, wherein he disclosed that one lady, namely, Anjali Verma @ Dalini Singh had handed over the said parcel to him. However, as the above named lady did not have the requisite identity cards required for booking the parcel, the same was booked by him on her behalf.

4. During the course of investigation, statement of Anjali Verma @ Dalini Singh was also recorded under Section 67 of the NDPS Act and she disclosed that the parcel was given to her by Kenneth Adams @ John for being booked through courier.

5. The investigating agency called Kenneth Adams at the residence of Anjali Verma @ Dalini Singh where he was arrested. He submits that Kenneth Adams in his disclosure statement recorded under Section 67 of the NDPS Act disclosed his address as Gali No.111, Sant Nagar, Burari, New Delhi. On search of his residence, 70 gms. of heroin was recovered, which is an intermediate quantity. He submits that in his statement recorded under Section 67 of the NDPS, Kenneth Adams disclosed that the petitioner is his partner in the illegal business of contraband.

6. He submits that in the statements of Dalini Singh as well as of Kenneth Adams, mobile number of the petitioner has been mentioned as 8860989535. He submits that this mobile number could not be recovered from the petitioner.

7. He submits that on the statement made by Kenneth Adams, the petitioner was arrested and during his personal search a mobile bearing no. 9870517259 was recovered. He submits that the prosecution has not filed any CDR or voice conversation with the charge sheet to show that the petitioner was in touch with other co-accused persons.

8. He further submits that the petitioner's statement was also recorded under Section 67 of the NDPS Act and a perusal of the said statement does not show that the petitioner was in any way connected with the contraband seized, from the parcel/nebulizer booked on behalf of Dalini Singh or, at the instance of Kenneth Adams from his residence at Burari.

9. He submits that though the recovery of contraband (Amphetamine) is from the parcel allegedly booked on behalf of the co-accused Dalini Singh and the seized contraband is of commercial quantity but said Dalini Singh in her statement under section 67 of the Act has not named the petitioner. In so far as recovery of 70 gms. of heroin at the instance of Kenneth Adams from his residence is concerned, he submits that the same is of intermediate quantity. He submits that there is no material to link the said recovery to the petitioner, except the statement of co-accused Kenneth Adams under section 67 of the Act, wherein he has only stated that the petitioner is his partner.

10. The learned counsel submits that the only incriminating material against the petitioner is the statement of Kenneth Adams under section 67 of the NDPS Act which is not admissible per se. He relies upon the decision of Kingsley O