Special Judge, Patiala House Court: In bail application filed under Section 439 of the Criminal Procedure Code (CrPC) seeking bail, Sudhir Kumar Sirohi J., granted bail to the applicants and observed that no evidence on record found to link the accused persons to the drug parcels sent from Mexico to Australia.
Facts
During an investigation of the accused Simpel Sharma for another matter wherein the accused persons were arrested, NCB found a tracking ID of a parcel containing contraband Methamphetamine weighing 1 kg sent from Mexico and destined for Australia. As per the voluntary statement made by Ms. Sharma under Section 67 of the NDPS Act, she admitted to being indulged in the online business of prohibited drugs under the Narcotics Drug and Psychotropic Substances Act, 1985 (NDPS) Act. She even confided in being associated with the other arrested persons (bail applicants) in the offence. The complaint was filed under Sections 8, 9A, and 12 read with Sections 22, 24, 25-A, 28 and 29 of the NDPS Act.
Submissions
Counsels for the accused persons submitted that there was no recovery in the matter and the only alleged evidence against the applicants were the WhatsApp chats and which were not related to the contraband seized outside India. It was also submitted that only Section 24 is having a bar on Section 37 NDPS Act and in the absence of any evidence against the accused, the bar of Section 37 NDPS Act stands lifted.
Counsel for NCB opposed the bail applications and submitted that there is a bar u/s 37 NDPS Act and the accused persons are the gang of syndicate dealing in international drug trafficking and there are various alleged chats recovered from the phone of the primary accused showing communication with the petitioners with respect to offer of sale/purchase of narcotics substance and controlled substance.
Analysis, Law and Decision
The Court noted that the complaint was filed u/s 8, 9-A, 12 r/w Section 22, 24, 25-A, 28 and 29 of NDPS Act and there was no recovery in the matter, therefore the only section which falls under section 37 NDPS Act is section 24 NDPS Act and only a tracking ID of the said contraband was recovered from the phone of the main accused.
The Court further noted that the Investigation officer of the case had specifically mentioned that there was no evidence at all to link the applicants/accused with the contraband which was recovered in Australia. Thus, in the absence of any evidence to link the accused persons with contraband recovered in Australia, the bar of section 37 NDPS Act stands lifted.
The Court granted bail to the accused persons as they are in judicial custody for long time and no purpose will be served by keeping the accused(s) behind bars when the trial is likely to take time and there is no chance of tampering with evidence as all the witnesses are NCB officials.
[NCB v Kaushal Bhotika, 2023 SCC OnLine Dis Crt (Del) 4, decided on 17-04-2023]
Advocates who appeared in this case :
For Accused Chetan Bhartia and Kaushal Bhotia: Advocates Sunil K Tewari and Manoj Tewari;
For Accused Narinder Pal Singh: Advocate Akshay Bhandari; Advocate Anmol Sachdeva;
For the Respondent: Advocate PC Aggarwal, LD SPP for NCB.