Somnath Pal vs The Intelligence Officer

R. Subbiah, J.—The petitioners, who were arrested by the respondent in connection with the offences punishable under Sections 22, 28 and 32 read with Section 8(c) of the NDPS Act, 1985 (as amended) and Section 135-A of the Customs Act, 1962, in C.C. No. 41 of 2013 on the file of the II Additional Judge for NDPS Act Cases at Chennai, seeks the relief of bail.

The petitioner in Crl.O.P. No. 1674 of 2015 viz., Somnath has been arrayed as 4th accused and the petitioner in Crl.O.P. No. 2684 of 2015 viz., Ram Chander Pandit has been arrayed as the 2nd accused in this case.

The case of the prosecution, in brief, is as follows-

3-1. On the basis of the information received by the respondent/Intelligence Officer, the 1st accused-Bhimlal Pandit (brother of the petitioner in Crl.O.P. No. 2684 of 2015) was arrested and remanded to judicial custody on 30.01.2013 by the respondent under the provisions of NDPS Act, 1985 in connection with the seizure of 50 kgs of substance believed to be Methaqualone, a psychotropic substance under NDPS Act, on 29.01.2013 from his possession at M/s. Kamdhenu Express Cargo Movers, Chennai, owned by him, from a consignment received by him as a railway parcel with the consignor as M/s. Rama Trading Co., New Delhi and the consignee as M/s. Balaji Enterprises, Chennai. Upon chemical analysis of the samples drawn at the time of seizure, the Central Revenues Control Laboratory, Customs House, Chennai reported that the contraband is Ketamine Hydrochloride, which is also a psychotropic substance under the NDPS Act, 1985. The discreet verification made by the respondent with regard to both the consignor and the consignee showed that both are non-existent entities.

3-2. It is further case of the prosecution that in his statement given under Section 67 of the NDPS Act, the 1st accused-Bhimlal Pandit has stated that the subject consignment was booked at his branch office at Delhi, which is managed by his own brother Ram Chander Pandit/A2 (Petitioner in Crl.O.P. No. 2684 of 2015); further, he is concentrating business only on Jammu Tawi Express; that he used to make delivery of the consignments to his regular customers and new customers used to take delivery of the consignments on production of LR copy; that normally he receives the consignment from Railways through the clearing and forwarding agent M/s. AMR Clearing and Forwarding Agent, Walltax Road, Chennai and deliver the same through his employees to all the consignee addresses; that for the subject consignment which had arrived in the name of M/s. Sri Balaji Enterprises, one Shri Shafi contacted him over phone twice on 29.01.2013 and made enquiries about the arrival of the said consignment in order to take delivery of the said consignment. In fact, when such a first consignment was sent from the Office of the 2nd accused at Delhi to the office of 1st accused, the said Shafi took delivery on 11.01.2013, without paying the charges which was paid by the said Shafi only on 19.01.2013. The said Shafi has also informed the 1st accused-Bhimalal Pandit that he was going to get such consignments on a regular basis; further, in the statement the 1st accused had stated that he did not know Shafi''s residential address, except his mobile number which Shafi gave him on 11.01.2013. On verification of the address furnished for his mobile number, it was found to be non-existing.

3-3. It is further case of the prosecution that after the arrest of the 1st accused, his brother (petitioner in Crl.O.P. No. 2684 of 2015) absconded himself, but he sent a letter dated 22.02.2013 to the Deputy Director, DRI, I.P. Estate, New Delhi. In the said letter, he had stated that on 23.01.2013, two parcels were booked from Delhi to Chennai weighing 50 kgs; that the name of the consignor was Rama Trading Co., Delhi specialist in PVC compound and chemicals and the name of the consignee was Sri Balaji Enterprises, Chennai; that on 29th January 2013 afternoon, the same person had come by a vehicle bearing Reg. No. Dl-3C-BW-1245 to get his parcel booked with invoice in the name of Universal Trading Co., Delhi; but he refused to book the parcel for the reason that the invoice did not have TIN Number properly; that at that juncture, he was shocked to receive a call from Chennai and that the said parcels which were booked on 23.01.2013 were detained and his elder brother Shri Bhimalal Pandid, who worked in Chennai Branch had been kept in the custody of DRI, Chennai owing to some narcotic items contained in the said parcels and thereafter, he had been arrested. Since petitioner/A2 became nervous, he could not call the police as his mind was upset because the culprit was with him at that moment; that anyhow he made the said person to sit and asked his full name and address in writing and he also wrote his name and address, as Somnath Pal/A4, S/o. R.N. Pal, R/o. DF 35, Shalimar Bagh, Near Pitam Pura, Delhi-88.

3-4. Since the 2nd accused did not respond to the summons dated 20.07.2013, the respondent has filed a criminal complaint before the Special Court for NDPS Act cases at Chennai on 25.07.2013 against the said Bhimlal Pandit, Ramchander Pandit, Somnath Pal and Shafi and the case was taken on file by the said Court in C.C. No. 41 of 2013 under Sections 22 and 28 of the NDPS act, 1985 (as amended) read with Section 8(c) ibid and Section 135-A of the Customs Act, 1962. Thereafter, pursuant to the efforts made by the respondent, the 2nd accused was apprehended at New Delhi on 24.12.2013 and he was produced before the jurisdictional Court at New Delhi and got transmitted to Chennai. Further, the respondent had also come to know that the 4th accused-Somnath Pal, who booked the parcel, was lodged in Tihar Prison in connection with a case involving ephedrine, a controlled substance falls under NDPS Act. Subsequently, the 4th accused was also brought under PT Warrant and remanded to judicial custody in connection with the present case. In Central Prison, Puzhal, the petitioners herein/accused 2 and 4 were enquired by the respondent and the 2nd accused gave a statement on 20.3.2014 and in the said statement, the 2nd accused has stated that a person came to his office on 23.01.2013 and he brought with him Invoice No. 84 dated 23.1.2013 of Rama Trading Co., D.23, Kanhaiya Nagar, Delhi and two parcels and he booked the parcels for Balaji Enterprises, Chennai. The 2nd accused booked the two parcels against their receipt No. 4723/21.1.2013 and handed over one copy of the receipt to that person and sent one copy to their office at Chennai. The two parcels got loaded in Andaman Express on 27.1.2013. Again on 29.1.2013, the person, who booked the two parcels under receipt No. 4723/21.1.13, came to him and asked as to why the two parcels have not reached Chennai till date. On enquiry about his name, he told his name as the Somnath Pal (4th accused).

It is the submission of the learned counsel for the petitioner in Crl.O.P. No. 1674 of 2015 viz., Shri Somnath Pal (A4) that the 2nd accused is the brother of the 1st accused and they are running a courier business in the name and style of Kamadhenu Express Couriers. The petitioner/A4 was implicated in this case only based on the confession statement of the 2nd accused. But, on a perusal of confession statement of the 2nd accused, it could be seen in the said statement that the 2nd accused had stated that a person came to book the parcel on 23.01.2013 and 29.01.2013 to his office and he informed his name as Somnath Pal. Whether the said person is the petitioner herein/A4 or some other person is highly doubtful. The learned counsel for the petitioner/A4 further submitted that the 4th accused has refused to give any statement; therefore the material available on record is not sufficient to say that the 4th accused is involved in this case. In fact, the 2nd accused had never identified the 4th accused to the effect that 4th accused was the person who came to his office to book the parcel. Further, the learned counsel for the petitioner/A4 further submitted that the informant has not mentioned the name of the petitioner/A4 to the respondent-police. Further, the main accused to whom the consignment is said to have been sent viz., Shafi is still absconding. Based on the confession statement given by the co-accused alone, the petitioner (A4) was implicated in this case, without any identification. Thus, the learned counsel for the petitioner (A4) sought for grant of bail.

The learned counsel for the petitioner in Crl.O.P. No. 2684 of 2015 viz., Ram Chander Pandit (A2) submitted that this petitioner/A2 and his brother Bhimal Pandit (A1) are running courier business in New Delhi for the past more than five years in the name and style of Kamadhenu Express Couriers, which has a branch office at Chennai and they have no criminal antecedents. The two parcels weighing 50 kgs were booked from Delhi to Chennai by a consignor viz., M/s. Rama Trading Co., Delhi and the name of the consignee is Shri Balaji Enterprises, Chennai. It is usual procedure in courier service that the contents of the parcels will be assumed based on the invoice given by the consignor along with the company''s TIN Number with the reasonable belief that they are true. The learned counsel for the petitioner/A2 further submit that even in the confession statement of the co-accused, there is no allegation as against this petitioner/A2; that absolutely no evidence was produced on the side of the prosecution to show that the petitioner/A2 is having knowledge about the contraband in the parcel. In this regard, the learned counsel for the petitioner/A2 relied upon the unreported judgment of this Court made in Crl.O.P. No. 28705 of 2012, dated 17.01.2013 and submitted that in an identical situation, this Court has granted bail since the petitioner in that case was implicated in the case based on the confession statement given by the co-accused. Thus, the learned counsel for the petitioner/A2 sought for the relief of bail.

The learned Special Public Prosecutor submitted that the 1st accused was arrested in this case on 30.01.2103. The 2nd accused/petitioner in Crl.O.P. No. 2684 of 2015 did not respond to the summons sent by the respondent. After filing the complaint before the Special Court and pursuant to the efforts made, the 2nd accused was apprehended at Delhi on 24.12.2013 and he was produced before the Special Court at Chennai on 25.12.2013 and remanded to judicial custody and his statement was recorded on 20.03.2014 in prison. There is enough material to show that the petitioner Ram Chander Pandit (A2) had knowledge about the contents of the parcel. In fact, the bail petition filed by the 1st accused in Crl.O.P. No. 30752 of 2013, which was on the same ground, was dismissed by this Court on 16.09.2014.

The learned Special Public Prosecutor submitted that so far as the 4th accused-Somnath Pal is concerned, he is involved in a case in respect of the contraband ephedrine and he was under custody in Tihar Jail. When the Officers enquired him before the Jailer, he refused to answer and had not cooperated with the investigation and he did not reveal anything; subsequently he was brought to Chennai under PT Warrant. The 4th accused is the person, who booked the consignment which was seized in this case.

The learned Special Public Prosecutor has further submitted that the accused persons are part of a bigger network involved in the illicit transaction in psychotropic substance and in view of the conspiratorial arrangement made by the petitioners/ accused to illicitly transport the substance for smuggling out of India, the provisions of Sections 35 and 54 of the NDPS Act would be clearly attracted in this case. Thus, the learned Special Public Prosecutor submitted that it is not a fit case to grant bail. In support of his contentions, the learned Special Public Prosecutor has relied upon by the judgments Superintendent, Narcotics Central Bureau Vs. R. Paulsamy, AIR 2000 SC 3661 : (2001) CriLJ 117 : (2000) 71 ECC 695 : (2000) 9 JT 29 : (2000) 9 SCC 549 : (2000) AIRSCW 4131 , and N.R. Mon Vs. Md. Nasimuddin, AIR 2008 SC 2576 : (2008) CriLJ 3491 : (2008) 9 SCALE 334 : (2008) 6 SCC 721 : (2008) AIRSCW 4531 : (2008) AIRSCW 4331 .

I have heard the submissions made on either side and perused the materials available on record.

In my considered opinion, the learned counsel for the petitioners/accused have made an attempt to raise a doubt in the mind of the Court in support of their contentions that the petitioners/accused are not guilty of the alleged commission of offence. Raising a doubt on the case of the prosecution by claiming certain probabilities in support of the defence of the petitioners/accused, is not sufficient enough to come to the conclusion that the petitioners have made out a reasonable ground before this Court to believe that the petitioners/accused are not guilty of the alleged offence and they are not likely to commit such offence while they are on bail, as required under Section 37 of NDPS Act for grant of bail. In this regard, a reference could be placed in the judgment reported in N.R. Mon Vs. Md. Nasimuddin, AIR 2008 SC 2576 : (2008) CriLJ 3491 : (2008) 9 SCALE 334 : (2008) 6 SCC 721 : (2008) AIRSCW 4531 : (2008) AIRSCW 4331 , wherein it has been observed by the Hon''ble Supreme Court as follows-

"9. In Collector of Customs Vs. Ahmadalieva Nodira it was noted at as follows:

"6. As observed by this Court in Union of India Vs. Thamisharasi, Clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent accused is concerned, are: the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression ''reasonable grounds'' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37. It did not take note of the confession statement recorded under Section 67 of the Act.... "

In the instant case, I find some prima facie materials as against the petitioners herein/accused. Though the petitioner/A2 stated that he had only sent the parcels booked by a consignee and he has no conscious knowledge about the said consignment, the materials placed on record would show that when a summon was issued to him in due process of a lawful investigation, instead of responding to the same, he absconded himself. The absconding of the petitioner/A2, after the arrest of his brother-A1 gives raise to a strong doubt on the case projected by the petitioner/A2 that he has no conscious knowledge about the consignment. Though the petitioner/A2 had stated that he was threatened with life by the 4th accused-Somnath Pal, the materials available on record would show that the petitioner/A2 has not chosen to give any complaint to the Police about the said threatening, which fact also gives raise to a doubt on the case projected by the petitioner/A2.

So far as the petitioner/A4 is concerned, it is submitted by the learned counsel for the petitioner/A4 that absolutely there is no material to show as to whether a person, who came to the office of the petitioner/A2 to book the consignment, was the 4th accused or some other person. Hence, according to the learned counsel for the petitioner/A4, in the absence of any material to show that the 4th accused is the person, who came to the office of the 2nd accused on 23.01.2013 and 29.01.2013 containing the narcotic substance, the petitioner/A4 could not be detained in prison for a longer period. But, I am not inclined to accept this submission made by the learned counsel for the petitioner/A4. The materials on record would show that the photos of 4th accused was shown to the 2nd accused and the 2nd accused identified the 4th accused stating that he was the person who came to his office to book the consignment.

Hence, I am of the opinion that absolutely no reasonable ground has been made out by the petitioners to show that they are not guilty of the alleged offence and they are not likely to commit any offence while they are on bail. Since the contraband seized in this case is found to be Ketamine Hydrochloride weighing 50 kgs, which is also a psychotropic substance, besides the quantity seized is a commercial quantity, there is a clear bar under Section 37 of NDPS Act. The entire grounds raised by the learned counsel for the petitioners/accused could be their defence, which can be considered only at the time of trial. Therefore, I am of the opinion that this is not a fit case to grant bail.

Hence, I am not inclined to grant bail and the petitions are liable to be dismissed. Accordingly, both the criminal original petitions are dismissed.