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2020 DIGILAW 743 (TS)

Mosiea Moosa v. Union Of India

2020-10-21

K.LAKSHMAN

body2020
JUDGMENT K. Lakshman, J. - This is an application for regular bail. The petitioner is sole accused in S.C. No.51 of 2016, pending on the file of the Special Judge for trial of NDPS Act - cum - Metropolitan Sessions Judge at L.B. Nagar, Ranga Reddy District. The offences alleged against the petitioner herein are under Sections 8 (c) read with 21 (c), 23 (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). The petitioner was arrested on 02.09.2015. 2. Heard Mr. Taquir Syed, learned counsel representing Mr. Mohd. Abdul Wahab, learned counsel for the petitioner, and Mr. V. Gopalakrishna Gokhaley, learned Special Public Prosecutor for Narcotics Control Bureau appearing on behalf of the respondent. 3. The allegation against the petitioner herein is that Revenue Intelligence Officer, Narcotics Control Bureau (NCB), Hyderabad Sub-Zone, received information that the petitioner herein, South African National, would be arriving at Shamshabad Airport, Hyderabad, from Dubai and she is carrying prohibited substances under the provisions of the NDPS Act. On 30.08.2015, the petitioner herein has arrived at Shamshabad Airport, she was intercepted by the respondent authorities. On inquiry, she has admitted that she is carrying some narcotic drugs concealed within her body. She has requested the NCB Officials to take her to Hospital immediately since she was feeling uneasy. The NCB Officials immediately took her to Osmania General Hospital (OGH), Hyderabad. The doctors of OGH examined the petitioner herein and retrieved some capsules from within the body of the petitioner through medical procedure with 15 x 7 cm. size containing some white colour powder. The capsules weighed with its cover came to around 199 grams of Cocaine. The other 20 numbers of small capsules measuring 5 x 4 x cm., were retrieved from her body. The weight of each such small capsule along with its cover was around 13.5 gms. The total weight of all 20 small capsules recovered from the body of petitioner was around 270 grams. Thus, the NCB Officials have recovered the total weight of around 427 grams of cocaine. The said cocaine, a narcotic drug, was seized under the panchanama on 30.08.2015. 4. The NCB Officials have explained the petitioner herein about the provisions of Section 50 of the NDPS Act. They have also served summons under Section 67 of the NDPS Act and recorded her statement. The said cocaine, a narcotic drug, was seized under the panchanama on 30.08.2015. 4. The NCB Officials have explained the petitioner herein about the provisions of Section 50 of the NDPS Act. They have also served summons under Section 67 of the NDPS Act and recorded her statement. Thus, the NCB Officials have arrested the petitioner on 02.09.2015 at 1100 hours for the contravention of the aforesaid provisions. 5. The learned counsel for the petitioner would submit that the respondent authorities have arrested the petitioner in violation of Section 50 of the NDPS Act. From 22.09.2015, the petitioner is in judicial remand. She is a woman, South African National; she is entitled for protection under Section 437 of Cr.P.C. The respondent authorities have violated the procedure laid down under NDPS Act including Sections 41 and 67 of the NDPS Act. 6. The Constitution of India confers rights on a person that stands supreme. Article 21 of the Constitution of India envisages that no person shall be detained in custody without authorization of law. The NCB Officials have already concluded its investigation and filed charge sheet. The complaint under Section 36A of the NDPS Act has already been filed in the year 2016 itself and, therefore, the entire investigation is completed. Since last five years, the petitioner is in judicial remand. The trial has also commenced in S.C. No.51 of 2016. Due to the present COVID-19 pandemic situation, the trial Court is unable to conclude the trial. With the said submissions, the learned counsel for the petitioner sought to release the petitioner on bail by imposing certain conditions. 7. The respondent has filed counter reiterating the above stated allegations against the petitioner herein. Mr. V. Gopalakrishna Gokhaley, learned Special Public Prosecutor, would submit that the petitioner is a South African national. She has committed heinous offence. She has carried more than commercial quantity of cocaine, a prohibitory substance under NDPS Act. She is a habitual offender. Modes Operandi in the entire commission of the offence would reveal the seriousness of the offence committed by the petitioner herein. The contraband which was seized from the petitioner is cocaine which is harmful to the life. Knowing very well that it is a prohibited substance, the petitioner herein brought the said item to India/Hyderabad. He would further submit that the NCB Officials have followed the due procedure laid down under the NDPS Act. The contraband which was seized from the petitioner is cocaine which is harmful to the life. Knowing very well that it is a prohibited substance, the petitioner herein brought the said item to India/Hyderabad. He would further submit that the NCB Officials have followed the due procedure laid down under the NDPS Act. The petitioner herein is a South African National, securing her presence during trial would be very difficult in the event of considering the bail application. He has placed reliance on the judgment of Hon'ble Apex Court in State of Kerala v. Rajesh , Criminal Appeal No.154-157 of 2020, dated 24.01.2020 . With the said submissions, the learned special public prosecutor sought to dismiss the present petition. 8. The above said submissions and the record would reveal that the NCB Officials have already completed investigation and filed charge sheet in the above case. The same was taken on file vide S.C. No.51 of 2016 for the aforesaid offences. The commission of offence by the petitioner, a South African National, would reveal the seriousness and modes operandi and also her mala fide intention in the commission of offence. She has kept the 'cocaine' prohibited substance under NDPS Act in capsules and intercepted the same in her body and capsules were retrieved from her body by the doctors of the Osmania General Hospital, Hyderabad. The quantity seized was more than commercial quantity. As per the notification issued by the Central Government, more than 100 grams of cocaine is a commercial quantity. About 427 grams of cocaine was seized from the body of petitioner which is more than commercial quantity. Admittedly, the petitioner is a South African National. 9. In Rajesh , Criminal Appeal No.154-157 of 2020, dated 24.01.2020 the Hon'ble Apex Court held that 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. 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. The Hon'ble Apex Court further held that after dealing with the provisions of the NDPS including Section 37, held that the scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which commences with non-obstinate clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. In view of the said principle, the manner in which the offence committed by the petitioner herein would reveal about its seriousness. 10. A perusal of the charge sheet would reveal that there are ten witnesses. Prima facie the petitioner has committed heinous offence and offences alleged against her are serious in nature. Even according to the petitioner, the trial was already commenced. According to the learned special public prosecutor, the trial Court could not conclude the trial due to present COVID-19 pandemic situation. Securing the presence of petitioner by the trial Court is also difficult as she being a South African National. The Sessions Case is of 2016. 11. Considering the above said aspects and also the fact that the trial Court has already commenced the trial, this Court is declined to grant regular bail to the petitioner. 12. Accordingly, the present Criminal Petition is dismissed. The Sessions Case is of 2016. 11. Considering the above said aspects and also the fact that the trial Court has already commenced the trial, this Court is declined to grant regular bail to the petitioner. 12. Accordingly, the present Criminal Petition is dismissed. However, it is made clear that the designated Court i.e., Special Judge for trial of NDPS Act - cum - Metropolitan Sessions Judge at L.B. Nagar, Ranga Reddy District, is directed to conclude the trial in S.C. No.51 of 2016 as expeditiously as possible, preferably within six (06) months from the date of receipt of certified copy of this order by following the Standard Operating Procedures (SOP) issued by this Court from time to time. As a sequel, miscellaneous petition, if any, pending in the Criminal Petition, shall stand closed.