Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 1021 (MAD)

Alexander Vyukhin @ Alex v. State

2014-04-30

P.DEVADASS

body2014
Judgment : Petition for bail. 2. Offences alleged are under Sections 22,23,27-A, 28 and 29 of NDPS Act, 1985. 3. Petitioner is A-2. 4. There are seven accused. A-1 passed away. So charges against him abated. Since A-7 was absconding for a long time, case against him was split up in a separate case. Thus, A-2 to A-6 are in one block. Naturally, their rank must be re-arranged. Now, practically the erstwhile A-2/petitioner has become A-1. 5. Now, the trial is pending in C.C.No.15 of 2012 before the learned Special Judge for NDPS Act cases at Chennai. For convenience sake, we shall refer the petitioner as such throughout this order. 6. Petitioner is a Russian National. In connection with this case, he has been arrested on 28.09.2011. Since then he is in jail. Now, he seeks bail. 7. According to Mr.S.Veeraraghavan, the learned Senior Counsel appearing for Mrs.Mamta Pandey, the learned counsel for the petitioner, petitioner is remaining in jail as an under-trial for more than 2 years and 7 months. However, the co-accused were granted bail. The petitioner has been implicated in this case mainly based on the confessional statement of A-1. A-1 committed suicide in jail. In the circumstances, the case against the petitioner becomes legally unsustainable, at any rate it has become weak. 8. The learned Senior Counsel appearing for the petitioner further contended that the petitioner came to India for Ayurvedic treatment in an Ashram for his mental illness. There is no improvement in his mental illness. He is taking medicines which are given to mental patients. The Jail authorities took him to the Institute of Mental Health in Kilpauk, Chennai. This has also been stated by the prosecution in their counter. 9. Thus, a mentally ill person has been jailed. It is against his human right. It is violative of the universal constitutional right guaranteed in our Constitution in Article, 21, which right is also available to foreign nationals. Merely because the petitioner is a Foreign National, he cannot be denied bail. If he is released on bail, he could take better treatment in a private hospital for his mental illness. 10. The learned Senior Counsel appearing for the petitioner also contended that the quantity involved is in between quantity. So, the rigour of Section 37(b) of the Act is not applicable to the petitioner. In the facts and circumstances, petitioner may be granted bail. 10. The learned Senior Counsel appearing for the petitioner also contended that the quantity involved is in between quantity. So, the rigour of Section 37(b) of the Act is not applicable to the petitioner. In the facts and circumstances, petitioner may be granted bail. 11. Mr.N.P.Kumar, the learned Special Public Prosecutor for NCB cases filed counter. The learned Special Public Prosecutor also contended that the petitioner is a prime accused in this case. He gave statement under Section 67 of the NDPS Act disclosing his participation in the commission of the offence. In the drug business, he collaborated with an American citizen/A7 and interacted with an Indian National/A1 Shankar. Petitioner financed exporting of psychotropic drugs to various customers abroad mostly in USA and in UK. During the search and seizure, many incriminating articles were seized from him. 12. The learned Special Public Prosecutor further contended that the petitioner's case is not rest upon the confessional statement of A-1 alone. His case is also based on independent materials. Thus, since A-1 has gone his (petitioner's) case cannot go away. 13. The learned Special Public Prosecutor further contended that the petitioner is also being prosecuted for an offence under Section 27-A of the Act. Thus, Section 37(b) of the Act applies to him. 14. The learned Special Public Prosecutor further contended that the co-accused who are wholesale suppliers of drugs have not violated Rule 58 of the Rules framed under NDPS Act and thus they were granted bail. But, the case of the petitioner is on different footing. Thus based on the grant of bail to the co-accused principle of parity cannot be applied to the petitioner. 15. The learned Special Public Prosecutor further contended that the petitioner claimed to be insane. However, on medical examination through Mental Hospital, he was found to be sane. The Presiding Officer examined him, perused the medical records, considered the sequence of events and certain stand taken by the petitioner and recorded a specific finding that he is mentally all right and denied him of any relief on the ground of mental illness. 16. The learned Special Public Prosecutor further contended that the petitioner is a Foreign National. He financed exporting of drugs from India. He is in drug trafficking for more than 5 years and during this period with his connivance and financial assistance lot of psychotropic substances were exported. He is an habitual offender. 16. The learned Special Public Prosecutor further contended that the petitioner is a Foreign National. He financed exporting of drugs from India. He is in drug trafficking for more than 5 years and during this period with his connivance and financial assistance lot of psychotropic substances were exported. He is an habitual offender. Every efforts has been taken to expedite the trial of his case. But, many bottle necks were created by the petitioner by filing petitions after petitions. In the facts and circumstances, petitioner is not entitled to bail. 17. I have given my anxious consideration to the rival submissions, perused the averments in the bail petition and in the counter and the materials produced. 18. Petitioner is a Russian National. He came to India. He was residing at a place in Kattupakkam in Villupuram District. On 20.9.2011, on receipt of specific intelligence, the NCB (Narcotics Control Bureau) sleuths raided a place in Ramakrishna Nagar in Salamedu in Villupuram. The occupant turned out to be one Sankar @ Sekar(A-1). Three carton boxes were seized. On search, they found containing certain capsules. They are psychotropic substances. Further investigation revealed involvement of the petitioner also. 19. On 27.09.2011, NCB raided petitioner's Kattupakkam residence. Pan card, passport, Netbook (Laptop), Pendrive, one gold bar, 2 mobile phones, bank pass book and also certain property documents were seized. They were verified. They were found to be containing many incriminating information. Confessional statement of Sankar as well as the petitioner were recorded separately under Section 67 of the NDPS Act. 20. It came to light that the petitioner came into contact with one Jhon(A-7) an American National, who is a kingpin in drug business. He sent lot of money through the petitioner for drug procurement. Petitioner had dealing with A-1 Sankar. They have utilised the facility available through Internet Pharmacy. A-3 to A-6 are druggists, pharmacists, shop keepers, whole sale drug suppliers. Petitioner placed orders with A-1 Sankar. A-1 procured drugs from A3 to A6, who have supplied the drugs without verifying the drug licence of A-1. It is also came to light that the petitioner gave money to A-1 to procure the drugs for the purpose of exporting them to foreign countries more particularly to USA and UK. There were many documents, bank accounts, cheques which showed direct connection and payments as between the petitioner and A-1. 21. It is also came to light that the petitioner gave money to A-1 to procure the drugs for the purpose of exporting them to foreign countries more particularly to USA and UK. There were many documents, bank accounts, cheques which showed direct connection and payments as between the petitioner and A-1. 21. Petitioner made disclosure statement during his examination under Section 67 of the NDPS Act. It contained various incriminating information. A-1 Shankar also gave statement under Section 67 of the Act containing several incriminating information. 22. While in jail, on 18.3.2013, Sankar committed suicide. Naturally, charge against him abated. But the charges against the petitioner will not, because, he is being prosecuted for financing drug export from India. The seized materials are to that effect. Therefore, after Sankar having gone to the other world, the case against the petitioner will not go away. Therefore, the contention of the learned Senior Counsel appearing for the petitioner based on abatement of the charges against Shankar will not enure any benefit to the petitioner. 23. After their considerable period of incarceration in jail, A3 to A6 were granted bail. They are whole sale suppliers of drugs. Prima facie they were found to have not violated any provision or Rule or Order under NDPS Act. In the circumstances, they were granted bail. 24. However, the case against the petitioner is on a different footing. He has financed exporting of drugs to foreign countries. In this regard, he has connived with the other accused. He has also facing prosecution under Section 27-A of the Act. Thus, on the basis of grant of bail to the said co-accused, petitioner cannot be considered for grant of bail on the principle of parity. Thus, the arguments placed by the learned Senior Counsel appearing for the petitioner on these lines is not acceptable to us. 25. The learned Senior Counsel appearing for the petitioner submits that the petitioner is insane and he is suffering out of certain mental illness, as such he may be granted bail to take better treatment outside the jail. 26. However, Mr.N.P.Kumar, the learned Special Public Prosecutor would submit that the petitioner is sane and there are enough materials to that effect. 27. Thus, it is seen that now on the basis of 'plea of insanity', petitioner seeks bail. 28. Petitioner is 51 years old. 26. However, Mr.N.P.Kumar, the learned Special Public Prosecutor would submit that the petitioner is sane and there are enough materials to that effect. 27. Thus, it is seen that now on the basis of 'plea of insanity', petitioner seeks bail. 28. Petitioner is 51 years old. He claimed before the trial Court that he is having mental illness and he is suffering out of that. Under these circumstances, to ascertain the genuineness of his claim, the trial Court referred him to the Institute of Mental Health situate in Kilpauk, Chennai for medical examination and report. 29. In deciding this issue, the trial Court conducted enquiry and examined the petitioner and also Doctor and jail official as P.Ws.1 and 2 and ultimately concluded that the petitioner is mentally all right and he is a sane person. During his arguments, before Court this aspect also has been pointed out by the learned Special Public Prosecutor. 30. The trial Court while arriving at the above conclusion it has also observed as under:- “On 14.4.2013, first this Court personally examined the petitioner/accused-2 and recorded the same in the question and answer from in the open Court to assess his mental soundness and capacity of mind. He having understood all the questions answered immediately in English. On observing the behavior and attitude while he attended the court in the earlier many hearings and on 14.5.2013, his attitude was absolutely normal and he behaved in a disciplined and dignified manner and he responded well to the directions of the Court. This Court never found any sign of mental or behavioral abnormality with the accused. Further the person who filed an affidavit on behalf of the petitioner/accused-2, Mr.Paranjothi was not examined inspite of pointing out by the Court. He is neither the parent nor the next relative of the petitioner/accused. P.W.1, Dr. Kathiravan, Jail Doctor has stated in his evidence that he referred the petitioner to the Government Institute of Mental Health at Kilpauk, Chennai for his treatment and on the request of the doctor at Government Mental Hospital, Kilpauk, Chennai, the behavior and attitude of the petitioner/accused was observed deeply. In observing so, they found no sign of any abnormality from the petitioner/accused. The petitioner/accused himself has given a letter on 29.4.2013, stating that the medicine taken by him did not work and so the hospital authorities should apply the medicines mentioned by himself. In observing so, they found no sign of any abnormality from the petitioner/accused. The petitioner/accused himself has given a letter on 29.4.2013, stating that the medicine taken by him did not work and so the hospital authorities should apply the medicines mentioned by himself. He himself asked for sedative and anti psychotic drugs quetiapine or Respridone tablets. On seeing this letter, the Court considers that the level of intelligence and understanding of the accused appears to be more than normal prudent person. Further, the jail doctor has stated that again the petitioner/accused-2 was referred to Government Mental Hospital, Kilpauk, Chennai for review on 29.3.2013 (Ex.P1 page 9), 4.5.2013 (Ex.P1-page 13), i.e., before and after his request for reception order dated 30.4.2013, the psychiatric doctor who treated him has opined that he had no sign of any mental illness and idea of committing suicide. Further, the jail doctor and authorities were requested to observe him closely and if any abnormality is found, to inform them and to continue the medicine given to him for further four weeks. P.W.1 has issued a certificate to that effect. Further, P.W.2, the Additional Jail Superintendent has also deposed that jail officers were asked by the doctors to observe and watch him closely. On their observation of the accused, they found no sign of any abnormality and he behaved as a normal common prudent man. From the examination of the petitioner/ accused personally by the Court and from the evidence of P.W.1, the jail doctor and P.W.2, the Additional Jail Superintendent, this Court comes to the conclusion that it has no reason to believe that the petitioner is a man of unsound mind and incapable of making his defence. The intellectual function of the petitioner/accused appears to be more than normal. So in the considered opinion of the Court, the petitioner is a man of sound mind and capable of making his defence in the case.'' 31. It is pertinent to note that on personal examination of the petitioner and medical examination of the petitioner through competent Doctors, the trial Court analysed this issue and ruled out that the petitioner is insane and it did not accept the insanity pleaded before it. In the circumstances, on this aspect, we concur with the view of the trial Court. 32. In the circumstances, on this aspect, we concur with the view of the trial Court. 32. Petitioner is alleged to have participated in exporting of certain psychotropic substances out of India to certain foreign countries. He is alleged to have financed the same. The seized materials shows that the petitioner also concerned with huge quantity of such drugs. 33. It is pertinent to note that the petitioner is being prosecuted for an offence under Section 27-A of the NDPS Act. In the circumstances, in considering his bail plea, the rider(rigour) incorporated in Section 37(b) of the Act applies to him. 34. Section 37(b) of the Act incorporates twin requirements to be satisfied for considering the bail plea of those who are accused of having committed offences under Sections 19, 24, 27-A of NDPS Act and also cases involving commercial quantity. Thus, there must be a conclusion that there is reason to believe that the petitioner is not guilty of the offence alleged and further he is not likely to commit any offence if let on bail. 35. On consideration of the entire materials placed before us, we hold that there is no reasonable ground to believe that the petitioner is not guilty of the offence alleged. 36. It is also pertinent to note that in connivance with his foreign contact, namely, (A-7), who is still absconding, petitioner had indulged in drug business for about 5 years and eked out his livelihood, and out of the drug money, he had amazed huge wealth and during a considerable period he had indulged in drug business. Thus, in the circumstances, we have no hesitation to hold that if let on bail, he is likely to commit similar offence. 37. In the light of the above discussion, petitioner's case is not a fit case for grant of bail. 38. In view of the foregoings, this bail petition is dismissed.