In Manvinder Singh Marwah @ Romi v State of Delhi, the Delhi High Court dismissed a Section 439 CrPC bail application NDPS Act petition involving alleged possession of 46 grams of cocaine and a connected recovery of 105 grams from a co-accused. Justice Veena Birbal delivered the Delhi High Court NDPS bail rejection, ruling that the mandatory Section 50 NDPS Act search procedure was prima facie complied with and that charges under Section 21 and Section 29 NDPS Act established a prima facie case of commercial quantity drug trafficking conspiracy that precluded regular bail.
Procedural History and Nature of Bail Application
1. This is an application under Section 439 of Cr.P.C. for the grant of bail in case FIR No. 20/2012 under Section 21 and Section 29 NDPS Act and Section 14 of the Foreigners Act at Police Station Special Cell, pending before the learned Additional Sessions Judge, New Delhi.
Prosecution Case, Apprehension, and Contraband Recoveries
2. The case of the prosecution is that on the basis of secret information, the present petitioner was apprehended on 22.8.2012 at about 10.55 p.m. near Moolchand Hospital and 46 gms. of cocaine was recovered from him. As per allegations, the petitioner also disclosed that he had taken the delivery of the alleged contraband from two persons, namely, Lamba and Aik.
He further disclosed that the other person Aik is presently in Delhi and on his disclosure statement the co-accused Ernest @ Aik was apprehended from the footpath near South Extension. It is further alleged that from his possession 105 gms of cocaine was recovered. The further allegations in the charge sheet are that the present petitioner as well as co-accused in conspiracy with each other were indulging in illegal trafficking of drugs.
Defense Contentions: Section 50 Search Safeguards and Quantity Thresholds
3. Learned counsel for the petitioner has submitted that the alleged recovery of cocaine from petitioner as is alleged is an intermediate quantity. Learned counsel for the petitioner has submitted that there is non-compliance of mandatory requirement of Section 50 of the NDPS Act.
It is contended that the petitioner was not apprised of his legal right to get his search conducted before a Gazetted Officer or a Magistrate as such there is non-compliance of the Section 50 NDPS Act search procedure. It is contended that no public witnesses were joined, as such the Section 100 CrPC independent witnesses provisions of Section 100(4) of Cr.P.C. were also not complied with.
4. It is further contended that the alleged recovery of 46 gms. of cocaine falls in the category of less than commercial category and thus embargo under Section 37 of NDPS Act is not applicable. It is submitted that petitioner is in custody for the past about 8 months.
There is no previous involvement of the petitioner. The trial will take substantial time. The petitioner earlier was granted interim bail and he had not misused the same. The alleged recovery is not believable, as such petitioner be admitted to bail.
State Submissions on Notice Compliance and Evidence Status
5. Learned APP has opposed the bail application. Learned APP submits that the requirement of Section 50 of NDPS Act has been fully complied with in the present case. Learned APP has submitted that notice given to petitioner under Section 50 of the NDPS Act clearly shows that the petitioner was informed of the right to be searched before a Gazetted Officer or a Magistrate. It is further submitted that the evidence is yet to be led in the present case. Prima facie, reading the wording of the aforesaid notice it cannot be said that petitioner was not informed of the right as is alleged.
Further, in the investigation it has also come that petitioner had refused to exercise his right to get him searched before a Gazetted Officer or a Magistrate.
6. As regards the alleged violation of Section 100(4) of Cr.P.C., learned APP submits that the IO had requested the public persons to join raiding party but none of them had come forward to join. It is submitted that the same is also a subject matter of evidence as to what efforts were made by the IO for joining the independent witnesses.
At this stage, it cannot be said that no serious efforts were made by the IO to join the public witnesses. Learned counsel submits that in these circumstances, it cannot be said that the alleged recovery is bad.
Judicial Findings on Conspiracy, Search Safeguards, and Independent Witnesses
7. I have considered the submissions made.
8. Perusal of trial court record shows that the charge has already been framed against the present petitioner as well as co-accused for having entered into a conspiracy for illegal trafficking of cocaine which is punishable under Section 29 of the NDPS Act.
As per allegations, pursuant to the aforementioned conspiracy petitioner has been found in possession of 46 gms. of cocaine on 22.8.2012 at 10.55 p.m. and his co-accused has been found in possession of 105 gms. of cocaine on 23.8.2012 at 10.55 p.m. and as such committed an offence punishable under Section 21(b) and Section 21(c) read with Section 29 of NDPS Act.
9. The charge against the present petitioner is also having entered into a conspiracy with the co-accused to deal in drugs. The present petitioner has been individually charged for the amount of cocaine recovered from him. He has also been charged for having entered into a conspiracy of illegal trafficking of drugs with the co-accused from whom commercial quantity of contraband has been recovered, establishing a commercial quantity drug trafficking conspiracy between the parties.
10. Reading the material on record, prima facie it cannot be said that Section 50 of NDPS Act was not complied with as is contended. The wordings of the said notice have been gone through. Reading the said notice it cannot be said that the petitioner was not made aware of his right to be searched before a Gazetted Officer or a Magistrate as is alleged.
Further, the material on record shows that petitioner had refused to exercise the legal right available to him under Section 50 of the NDPS Act. In the investigation it has also come that IO had made efforts to join the public witnesses as such prima facie it also cannot be said that there is violation of Section 100(4) of Cr.P.C. as is contended. Further the evidence of the prosecution is yet to start. The contentions raised are subject matter of evidence.
Final Order and Dismissal of Bail Application
11. In view of the seriousness of allegations, the bail application is rejected.
12. It may be mentioned that judgments relied upon by learned senior counsel appearing for petitioner have been gone through. The same are not relevant at this stage. It is also clarified that nothing stated herein shall have any bearing on the merits of the case.
13. Trial court record be sent back forthwith through Special Messenger.
Application dismissed.