Okechuku Mathew vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner, a foreign national, is an under trial prisoner, accused of possessing 1.550 kg of heroin at his rented premises in New Delhi as well as for selling 15 grams of heroin to one Praveen Kumar Samal. He was arrested on 13.02.2017 in FIR No.25/2017, registered on 11.02.2017 at Police Station Kullu, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and 420 Indian Penal Code. By way of the instant petition under Section 439 of the Code of Criminal Procedure, regular bail has been sought.

Heard learned counsel for the parties and gone through the status report.

The prosecution case against the petitioner is:-

3(i). On 11.02.2017, a police party while on routine patrolling duty near Kasol, District Kullu noticed a pedestrian coming from Kasol side. Apparently, noticing the police personnel there, this person took out a packet from his jacket pocket and threw it on the roadside in an overtly casual manner. The action, however, appeared suspicious to the patrolling party. The pedestrian was stopped. He gave his identity as Praveen Kumar Samal, resident of District Keonjhar, Orissa. The cigarette packet thrown by him was collected. It was found to contain white coloured substance kept in a polythene, which on the basis of experience of the police personnel, was determined as heroin. The substance weighed 15 grams on electronic scale. The procedure prescribed in law was complied with, leading to registration of the FIR in question. Praveen Kumar Samal was arrested on 11.02.2017.

3(ii). During investigations, said Sh. Praveen Kumar Samal statedly disclosed about having purchased the contraband in question from the bail petitioner in New Delhi. He is also said to have disclosed about purchase of heroin three times in past in similar manner from the bail petitioner in Delhi for the purpose of selling it at Kasol. He also recorded statement to this effect under Section 27 of the Indian Evidence Act.

3(iii). A police party alongwith Praveen Kumar Samal and independent witnesses went to Delhi at the rented premises of the bail petitioner. Search of these premises was carried out, which yielded recovery of 1.550 kg of heroin. The bail petitioner was arrested on 13.02.2017 and brought to Police Station Kullu.

3(iv). During investigations, it emerged that bail petitioner was earlier also involved in FIR No.187 of 2014, registered on 01.10.2014 at Police Station Manali, under Section 21 of the NDPS Act. He had surrendered his passport in the aforesaid FIR No.187 of 2014. This passport has not been released by the Court. However, on 29.04.2016, while taking the premises on rent in Delhi, the petitioner, whose real name is Okechkwu Mathew, presented himself as Ugwueke Bright on the strength of a fake passport prepared by him under this fake name, whereafter Section 420 IPC was also incorporated in the FIR. The investigations disclosed that the bail petitioner used to sell heroin to Praveen Kumar Samal, who in turn, used to sell it to other persons in District Kullu.

3(v). The challan in the FIR in question was presented before the learned Sessions Judge, Kullu on 22.05.2017 and the matter is now stated to be fixed for evidence on 07.10.2020.

3(vi). A bail petition, bearing Cr.MP(M) No.1530 of 2017, preferred by the petitioner was rejected by a Co-ordinate Bench of this Court on 29.12.2017. Another bail application moved by the petitioner was turned down by the learned Special Judge Kullu on 19.06.2020.

Learned counsel for the petitioner submitted that the requirements of Section 41 of NDPS Act as well as provisions of Sections 165 and 166 of the Code of Criminal Procedure were not complied with by the investigating agency. The police personnel, who arrested the petitioner and carried out the search, were neither authorised nor competent to do so. Per Contra, learned Additional Advocate General opposed the prayer of the petitioner for release on bail on the ground that the petitioner had committed a serious offence involving a large quantity of contraband. Charge-sheet was filed as far back as on 22.05.2017. The evidence in the case is yet going on, whereunder statements of 12 witnesses have already been recorded.

Petitioner is accused of possessing 1.550 kg of heroin as well as for selling 15 grams of heroin to one Praveen Kumar Samal. The quantity of heroin recovered from the rented premises of the petitioner in Delhi is much more than 250 grams, notified as commercial quantity under the NDPS Act. Therefore, rigors of Section 37 of the NDPS Act are attracted in the instant case. Section 37 reads as under:-

"37. Offences to be cognizable and non-bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 of section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in the afore-extracted section:-

(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and

(ii) Accused is not likely to commit any offence while on bail.

In the facts of the instant case as have come out so far in the status report, at this stage, there are no reasonable grounds to believe that the petitioner is not guilty of the offences charged against him. His earlier bail petition, bearing Cr.MP(M) No.1530 of 2017, involving pleas similar to the grounds taken in the instant petition, was rejected by a Co-ordinate Bench of this Court on 29.12.2017. Suffice to note that trial of the case is yet going on. After the conclusion of trial, it will be open for the petitioner to raise all contentions in his defence including the contentions raised in the instant bail petition.

Noticing the judgment dated 29.12.2017 passed in Cr.MP(M) No.1530 of 2017, considering the gravity of the offence as well as the fact that the trial is nearing its conclusion and the fact that the petitioner at this stage has not been able to make out a case for grant of bail under Section 37 of NDPS Act, there is no merit in the instant petition and is accordingly rejected, reserving liberty to the petitioner to file fresh petition at an appropriate stage in accordance with law, if so advised. However, taking note of the fact as informed by the learned Additional Advocate General that 12 out of 23 prosecution witnesses have already been examined in the FIR in question, wherein the challan was presented as far back as on 22.05.2017, the learned Trial Court/Sessions Judge, Kullu is, therefore, directed to expedite and conclude the trial by or before 31st January, 2021. It is clarified that the observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove. Pending miscellaneous application(s), if any, also stand disposed of.

Registry is directed to forthwith communicate a copy of this order to the learned Sessions Judge, Kullu for compliance.