AMACHI JUDE ONYEKA Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 439 of Code of Criminal Procedure moved by the petitioner for releasing him on bail in a case FIR No. 563/2012 under sections 21/65/85 of NDPS Act registered at Police Station Mehrauli. As per the allegations in the FIR, the petitioner was apprehended by the police on 19.12.2012 at about 2.15 am at Western Marg Saidulajaib, New Delhi while he was travelling in an auto rickshaw bearing registration number DL 1RH 0562, which was stopped by the police on suspicion. Two Nigerians were found sitting in the auto rickshaw. However, one of which fled away from the spot while the petitioner was apprehended with one paper handbag in his possession. The hand bag being carried by the petitioner was found to be containing some cocaine like substance and the same had dullinuma illicit article which on seeing or smell seemed to be cocaine weighing 800 gm. As such, the petitioner was arrested after completing formalities and the FIR was registered against him. It is submitted by learned counsel for the petitioner that when the sample was tested it gave positive test only for the presence of diacetylmorphine (heroin) with a given purity of 49% and was not opined to be cocaine. After filing of the charge -sheet, one application was moved by the petitioner/accused for retesting of the contraband substance which was allowed by the Court and two fresh samples were drawn on 31.05.2013 and one of the samples was tested by FSL Rohini and the same also opined to be containing diacetylmorphine (heroin) with given purity of 32%. It was further submitted by learned counsel for the petitioner that in view of the conflicting reports of tests carried out by the police officials and the FSL Laboratory, it is doubtful as to what was the actual nature of substance allegedly seized from the possession of the petitioner/accused and further in view of the drastic fall in the purity percentage in the above two reports from 49% to 32%, the very nature of seized contraband substance is under serious doubt and, therefore, the petitioner is entitled to be released on bail. Reliance was placed on Ram Narayan v. State : 121 (2005) DLT 166; Rahul Saint v. The State, 2006 (3) JCC [Narcotics] 134 :, 2006 VII AD (Delhi) 531; Ram Narayan (supra) and Rahul Saini (supra), 2011 (4) CC Cases (HC) 386 : and NCB v. Sukh Dev Raj Sodhi : 2011 (4) JCC 212. It was further submitted that the petitioner is in custody since 19.12.2012, the petitioner is living with a lady in live -in -relationship and having one child out of the relationship and there is no reason of his absconding from the trial. As such, it was submitted that the petitioner be released on bail.

(2.) THE application is vehemently opposed by learned Additional Public Prosecutor for the State on the ground that the bail application was dismissed by learned Special Judge, NDPS by a speaking order. As regards the judgment rendered in Ram Narayan (supra) and Rahul Saini (supra), it was submitted that the same does not help the petitioner in as much as those judgments were passed prior to notification dated 18.11.2009. As per the notification, entire weight of the substance or mixture is to be considered and not only its purity or drug content. As such, the difference in the purity percentage is removed as far as weight of the substance is concerned. It was further submitted that the petitioner is a Nigerian national and, therefore, the possibility of his fleeing away cannot be ruled out as one Nigerian passport was recovered from the petitioner which was found to be a fake document on verification from High Commission of Nigeria. Moreover, a very vague plea has been taken by the petitioner that he is living with a lady in live -in -relationship having one child. However, the details have not been furnished and even no proof to that effect has been furnished. It was further submitted that out of 14 witnesses, 8 witnesses have already been examined as such there is no ground to release the petitioner on bail.

(3.) IT was rightly observed by the Trial Court that the purity percentage with regard to the contraband substance seized under the relevant provisions of the NDPS Act is irrelevant after the above notification issued by the Ministry of Finance, Government of India where it was laid down that the entire weight of such substance or mixture is to be considered and not only its purity percentage.