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Bobby Collin v. Narcotic Control Bureau .

Delhi High Court
Apr 19, 2021
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Bail Appln. 812/2021

Attorney(S)

Mr. Vikas Gautam, Advocate

Mr. Subhash Bansal, Senior Standing Counsel with Mr. Raghav Bansal, Advocate

JUDGES

Justice Suresh Kumar Kait

ACTS

Sections 21 & 23 of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth referred to as the NDPS Act).

Section 67 BAIL APPLN. 812/2021 Page 3 of 17 of NDPS Act

Section 21(c) and 23 (c) of NDPS Act

Government of India, as Section 2

Section 21/23 of NDPS Act

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Smart Summary (Beta)

Factual and Procedural Background

The petitioner, Bobby Collins Anagor (a South African national), is the accused in SC No. 9164/2016 under Sections 21 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleges that on 29.03.2015, based on secret and reliable information, Narcotic Control Bureau (NCB) officers intercepted the petitioner at Indira Gandhi International Airport (IGI), Terminal-3, upon his arrival by Emirates flight EK 510 from Sao Paolo via Dubai. The petitioner was identified by passport number A02601093. Following service of a notice under Section 50 of the NDPS Act and initial searches (including baggage search), the petitioner reportedly disclosed that he had swallowed pellets/capsules containing narcotic substance. He was served a notice under Section 67 of the NDPS Act, recorded a voluntary statement admitting to swallowing the pellets/capsules, and was taken to Safdarjung Hospital for medical examination and X-rays/CT scans, which revealed concealed pellets/capsules.

Over the night of 29–30 March 2015, the petitioner excreted multiple batches of pellets/capsules during defecation; ultimately 65 pellets/capsules were recovered. One capsule and then multiple capsules tested positive on a field testing kit for cocaine; the 65 pellets were mixed and weighed at 1.320 kg. Two 5-gram samples were drawn and sent to the Central Revenues Control Laboratory (CRCL). The petitioner was arrested on 31.03.2015 and, after investigation, a complaint under Sections 21/23 NDPS Act was filed on 28.09.2015. Charges under Section 21(c) and 23(c) were framed by the trial court on 30.03.2016. At the time of this opinion, trial was in progress: out of 17 prosecution witnesses, 13 had been examined, three witnesses were dropped, and one prosecution witness remained to be examined.

Legal Issues Presented

  1. Whether the petitioner is entitled to regular bail while facing trial for alleged offences under Sections 21 & 23 NDPS Act (application for bail).
  2. Whether the prosecution complied with the procedural safeguards prescribed by Section 50 of the NDPS Act at the time of search and personal examination.
  3. Whether the sampling, testing and preservation procedure prescribed under Section 67 of the NDPS Act and the departmental standing instructions (Standing Instruction No.1/88 and Standing Order No.1/89) were complied with — in particular, whether representative samples were drawn from the 65 pellets/capsules in accordance with applicable instructions.
  4. Whether the bar or rigour of Section 37 NDPS Act (as interpreted by higher authorities) operates to deny bail in the circumstances of alleged recovery of contraband in commercial quantity.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner has been in custody since 31.03.2015 and the trial is likely to take a long time to conclude; thus bail is warranted.
  • The prosecution case contains material and procedural infirmities, specifically:
    • Samples were not individually drawn from each of the 65 pellets/capsules; the samples sent to CRCL were not representative samples of each contraband item.
    • Conditions and procedures stipulated under Section 67 of the NDPS Act were not complied with.
    • The NCB officials did not comply with Standing Instruction 1/88 (and related Standing Order 1/89) regarding on-spot sampling, recording in panchanama, serial numbering, lotting/bunching and sample preservation.
    • Non-compliance with Section 50 procedure: no Gazetted Officer/Magistrate was called at the time of search, notice under Section 50 had overwriting, and there are contentions about the sequence of taking the petitioner to NCB office before hospital despite petitioner’s discomfort.
  • Reliance was placed on several authorities and orders (including Amani Fidel vs NCB and Supreme Court decisions on standing orders) to support the contention that sampling obligations were not met.
  • Petitioner draws attention to testimony of public witness PW10 (Puran Chand) who stated that only 55 capsules were tested in his presence and that no writing work was done, and to PW3 (Assistant Chemical Examiner) — contending these depositions undermine the prosecution case.
  • Petitioner retracted his earlier statement at the first available opportunity (submitted as relevant to credibility of confession/admissions).

Respondent (NCB)'s Arguments

  • The petitioner is a foreign national accused of trafficking a huge commercial quantity of drugs; there is a risk of absconding if released on bail.
  • The prosecution complied with Section 50 of the NDPS Act during search and personal examination.
  • The seizure, sampling and the drawal of samples were carried out in accordance with Section 67 of the NDPS Act; standing instructions were followed.
  • The trial court, considering the recoveries and the applicability of Section 37 NDPS Act, rightly dismissed the bail application at the trial stage; the present petition should therefore be dismissed.
  • Standing Instruction No.1/88 and Standing Order No.1/89 are internal departmental/advisory guidelines and not gazetted statutory rules; they are for guidance and cannot be equated with statutory law (submitted in opposition to the petitioner's reliance on them as binding).
  • Since the trial is at its fag end (only one prosecution witness remains), the bail petition deserves dismissal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court (as recorded in the opinion)
Amani Fidel vs. Narcotic Control Bureau (Crl.A.1027/2015), decision dated 13.03.2020 Principle on sampling where more than one container/package is found: requirement to draw samples individually or to form lots (e.g., lots of 10 or 40) and draw representative composite samples if packages are identical. Recorded as relied upon by the petitioner to challenge the sampling method; the court noted the reliance but did not decide the issue on merits in this petition.
Union of India vs. Bal Mukund & Ors (2009) 12 SCC 161 Reference to Standing Instruction No.1/88 (procedural directions for sampling and related matters). Recorded as relied upon by the petitioner (the decision had referred to the standing instructions); the court took note of the reliance but did not adjudicate the compliance dispute at this bail stage.
Noor Aga vs. State of Punjab & Anr (2008) 16 SCC 417 Consideration of sanctity of Standing Order No.1/89 (procedural directions under Section 52A of NDPS Act). Recorded as relied upon by the petitioner; court noted the citation but did not resolve the submitted non-compliance on the bail petition.
Tofan Singh vs. State of Tamil Nadu (2020 SCC OnLine SC 882) The opinion records that reliance was placed on this Supreme Court decision (specific rule cited in the petition is not detailed in the opinion). Noted by the court as cited by counsel for the petitioner; no substantive ruling on its applicability was made in the present bail petition.
Gopal Das vs. NCB (This Court, order dated 04.02.2021) and related orders cited by petitioner (Bail Appln. 3491/2020; Bail Appln. 4165/2020 Ashwani @ Sonu; Bail Appln.191/2020 Uruakpa Ahmed @ Baba Don) The opinion records reliance on these orders of this Court (the opinion does not specify the precise principles from these orders). Recorded as decisions relied upon by the petitioner; the court noted them but did not apply or distinguish them in detail for purposes of the bail petition.
Edward Khimani Kamau vs. The Narcotic Control Bureau (Crl.A. 1113/2011, order dated 28.05.2015) Recorded as a decision of a Coordinate Bench relied upon by the petitioner (specific rule not detailed in the opinion). Noted by the court as relied upon; the court did not base its dismissal of the petition on or against this decision in the opinion.
Sucha Singh & Anr. vs. State of Punjab (Punjab & Haryana High Court, CRA No. 826-DB of 2009, order dated 06.07.2015) Relied upon by the NCB in support of the view that bail may be denied where Section 37 NDPS Act and related precedents apply. Noted by the court as a decision relied upon by the respondent; the court considered the broader argument about the rigour of Section 37 but did not decide the legal questions on bail purely on these precedents in this petition.
State of Kerala & Ors. vs. Rajesh & Ors (2020) 12 SCC 122 Authority interpreting the mandate and rigours of Section 37 NDPS Act (as cited by the NCB). Recorded as relied upon by the NCB to submit that Section 37 operates to deny bail; court noted the reliance but proceeded to dismiss the petition without detailed adjudication on merits given the stage of trial.

Court's Reasoning and Analysis

The court examined the record and rival submissions and proceeded as follows:

  1. Factual findings from the complaint were summarized and accepted for the limited purpose of the bail hearing: notice under Section 50 was issued to the accused by IO Sh. B.L. Bairwa, the accused declined search before a Magistrate/Gazetted Officer and refused personal search by certain officers; the accused's baggage search produced nothing; thereafter the accused disclosed ingestion of pellets and was served notice under Section 67 and recorded a voluntary statement admitting swallowing the pellets and requesting hospitalisation.
  2. The court recorded the prosecution's averments that the recovered pellets were 65 in number, identical in shape/size/packaging, one pellet initially tested positive for cocaine by field kit and subsequently small amounts were separately taken from each packet and field-tested positive for cocaine. The 65 pellets were homogenized, weighed at 1.320 kg, and two 5-gram samples were drawn and sent to the Chemical Examiner, CRCL, in the presence of IO and two independent witnesses.
  3. The court considered the petitioner's procedural objections (non-compliance with Section 50; alleged defects in sampling under Section 67 and Standing Orders; discrepancies in witness testimony regarding how many capsules were tested in their presence; custody of capsules while at hospital; overwriting on the Section 50 notice; sequence of events) but observed that the trial was at an advanced stage — only one prosecution witness remained to be examined — and that the petition sought adjudication of procedural deficiencies before trial conclusion.
  4. The court declined to engage in piecemeal scrutiny of portions of the prosecution evidence (specifically the examination and cross-examination extracts from PW-3 and PW-10) and held that alleged procedural lapses and defects in prosecution evidence could be properly explored and established during the defence evidence at trial and agitated before the trial court at final arguments.
  5. Given the stage of the trial and the pendency of prosecution evidence, the court chose not to go into the merits of the procedural contentions raised on the bail application and instead disposed of the petition on procedural grounds related to timing and appropriateness of relief at that stage.

Holding and Implications

DISMISSED. The petition for regular bail was dismissed.

Implications (as recorded in the opinion)

  • Direct effect: The petitioner remains in custody and the trial proceeds; the petition for bail was refused without the court deciding the substantive merits of the procedural objections raised.
  • The court explicitly refrained from forming a view on the alleged procedural non-compliances (Section 50, Section 67, standing orders, or the witness depositions) and observed that these matters can be ventilated and adjudicated at trial — during the defence evidence and at final arguments before the trial court.
  • The opinion does not purport to create or lay down any new binding precedent on the issues of sampling or compliance with standing orders; it records existing authority relied upon by the parties and dismisses the bail application at the present stage.

Judge: Suresh Kumar Kait — Date of Order: April 19, 2021.

Show all summary ...

1. Vide present petition, petitioner is seeking regular bail. He is in custody since 31.03.2015 and is facing trial in SC No. 9164/2016 for allegedly committing offences under Sections 21 & 23 of Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth referred to as the NDPS Act).

2. The allegations against the petitioner, as spelt out in the complaint filed by Narcotic Control Bureau (NCB), are that on 29.03.2015, upon receipt of secret and reliable information that a South African national, BAIL APPLN. 812/2021 Page 2 of 17 namely, Bobby Collins Anagor, having passport No.A02601093, is coming to Delhi from Sao Paolo via Dubai by Emirates Airway Flight No. EK 510 and is suspected to carry narcotic drug and psychotropic substance inside his body and might carry some drug in his baggage. Accordingly, a raiding team was constituted, which reached the IGI Airport, Terminal-3, New Delhi at around 08:30 a.m. Enquiries were made from IGI Airport custom officials as well as Emirates Airways staff with regard to Flight No. EK 510 and on arrival of flight passports of all the passengers were checked. Petitioner having passport No. A02601093 was identified and when he reached at custom counter, the NCB team introduced themselves and the secret information was shared with him. Thereafter, notice under Section 50 of the NDPS Act was served upon the petitioner and procedure prescribed therein was explained to him. He was taken to the CISF room where his baggage was physically examined but nothing incriminating was recovered there-from.

3. As per the prosecution, petitioner was offered tea and snacks at the Airport but he refused to eat and drink and upon enquiry, he disclosed that he was carrying some pellets/capsules of drugs in his stomach and so he does not want to eat and drink anything. Thereafter, Notice under Section 67 BAIL APPLN. 812/2021 Page 3 of 17 of NDPS Act was served upon him and he agreed to accompany the NCB team to their office where he tendered his voluntary statement in his own handwriting, wherein he disclosed having swallowed pellets/capsules of drugs which were in his stomach and requested the NCB team to take him to the hospital as he was feeling uncomfortable due to pellets/capsules of drugs being inside his body for a long time. The NCB team, after following due procedure for search and seizure and collecting necessary items like weighing machine, DD kit, IOs kit etc. reached at Safdarjung Hospital where two persons, namely, Pooran Singh and Rajeshwar Singh, both working at Safdarjung Hospital, voluntarily agreed to become independent witnesses to the search and seizure proceedings.

4. Under the directions of CMO, Safdarjung Hospital, Dr. Kashika proceeded for medical examination of petitioner and after his X-ray and CT scan, it became apparent that small pellets/capsules were concealed inside petitioners body. Hence, petitioner was admitted in emergency surgical ward for removal of pellets/capsules from his body.

5. On the same day i.e. 29.03.2015 at around 06:30 p.m. petitioner passed out 11 pellets/capsules of drugs from his body during passage of stool. Similarly, at around 08:40 p.m. 10 pellets/capsules; at around 10:05 BAIL APPLN. 812/2021 Page 4 of 17 p.m. 10 pellets/capsules and at about 11:30 p.m. 06 pellets/capsules of drugs were excreted during passage of stool. On the next day, i.e. 30.03.2015 at about 02:00 a.m. again 05 pellets/capsules; at about 04:00 a.m. 05 pellets/capsules; at about 06:00 a.m. 02 pellets/capsules; at about 07:45 a.m.

05 pellets/capsules; at about 08.50 a.m. 03 pellets/capsules and at about 11:00 a.m. 02 pellets/capsules were passed out during passage of stool by petitioner. These pellets/capsules were washed and kept inside a polythene packet.

6. Further, at about 11:40 a.m. to check as to whether all the pellets/capsules have been removed from petitioners body, his X-ray and CT scan was carried out and it was opined that no further pellets/capsules could be seen inside his body, but he was kept under observations.

7. Thereafter, pellets/capsules, all in oval shape and same size, were washed, counted and found 65 in number. One of the pellets/capsules was cut open and it was found containing some white powdery substance. Upon being tested with the field testing kit, it was found to be cocaine. Similarly, all pellets/capsules were cut open and were found to contain same white powdery substance. A small amount of powder was taken separately from each packet and tested separately with the help of field testing kit and these BAIL APPLN. 812/2021 Page 5 of 17 were positive for cocaine.

8. Since all 65 pellets/capsules were of same size, packaging, texture, colour and property, these were mixed properly and homogenously and were transferred into a transparent polythene packet and upon weighing, it came out to be 1.320 kg. Two samples of 5 gram each were drawn and put inside two separate zip lock pouches, which were again put inside two separate white colour paper envelopes and were marked. The packing material of 65 polythene pellets/capsules in which recovered cocaine was wrapped, were put inside a separate polythene packet. The transparent packet containing cocaine and the polythene packet containing packaging material were put together and further kept and stitched in a white marked cloth and tied with plastic sutli and were marked. The entire proceedings of search and seizure were concluded in a cordial manner, following due procedure of law.

9. Subsequently, petitioner was arrested on 31.03.2015 and after completion of investigation, the complaint under Section 21/23 of NDPS Act was filed before the learned trial court on 28.09.2015. The learned trial court vide order dated 30.03.2016 framed the Charge under Section 21(c) and 23 (c) of NDPS Act and proceeded the trial.

10. This Court is informed that trial is in progress and out of 17 BAIL APPLN. 812/2021 Page 6 of 17 prosecution witnesses, 13 witnesses have been examined, three witnesses have been dropped and, thereby, only one witness remains to be examined.

11. At the hearing, learned counsel for petitioner submitted that petitioner is behind bars since the day of his arrest and trial shall take long time to conclude and, also that the prosecution case suffers from material and procedural infirmities. He submitted that the samples were not individually drawn from 65 pellets/capsules allegedly recovered from the stomach of petitioner and the samples sent to Central Revenues Control Laboratory (CRCL) were not the representative samples of contraband allegedly seized from 65 samples and, also that conditions stipulated under Section 67 of NDPS Act have not been complied with.

12. Reliance was placed upon decision dated 13.03.2020 of this Court in Crl.A.1027/2015, titled as Amani Fidel vs. Narcotic Control Bureau to submit that where more than one container/package is found, respondent is required to draw sample from each of the individual package/container and test each of the sample with the field testing kit and if the package/container is identical in shape, then a lot of 10 or 40 container/package may be prepared and thereafter, each package/container in particular lots are drawn, mixed and sent for testing. BAIL APPLN. 812/2021 Page 7 of 17

13. It was further submitted that NCB officials did not comply with the instruction 1/88 dated 15.03.1988 of Narcotic Control Bureau, relevant paras of which relied upon read as under:- 1.5 Place and time of drawal of sample Samples from the Narcotic Drugs and Psychotropic Substances seized must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug has been recovered, and mention to this effect should invariably be made in the panch nama drawn on the spot. 1.6 Quantity of different drugs required in the sample The Quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. 1.7 Number of samples to be drawn in each seizure case- (a) In the case of seizure of single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. (b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers may be bunched in lots of 40 such packages such packages/containers. BAIL APPLN. 812/2021 Page 8 of 17 For each such lot of packages/containers, one sample in duplicate may be drawn. (c) Where after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remains, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and substances and

20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers. (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot." (emphasis added)

14. It was further submitted that para materia standing orders 1/88, is the standing order No.1/89 dated 13.06.1989 issued under Sub Section 1 of Section 52A of NDPS Act by the department of Revenue, Ministry of Finance, Government of India, as Section 2 thereof provides general procedure for sampling, storage etc. of seized narcotic, which read as under:- SECTION II- GENERAL PROCEDURE FOR SAMPLING, STORAGE ETC. 2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure. BAIL APPLN. 812/2021 Page 9 of 17 2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages /containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/ containers/ except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be BAIL APPLN. 812/2021 Page 10 of 17 drawn. 2.7 If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package /container. 2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S.No. of the package(s)/ containers from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope which should also be sealed and marked secret-drug sample/ Test memo is to be sent to the chemical laboratory concerned. 3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. BAIL APPLN. 812/2021 Page 11 of 17 3.1 After sampling, detailed inventory of such packages /containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes. (emphasis added)

15. Reliance was also placed upon Honble Supreme Court decision in Union of India Vs. Bal Mukund & Ors. (2009) 12 SCC 161, wherein standing instructions No.1/88 have been referred. Further, reliance was also placed upon Honble Supreme Court decision in Noor Aga Vs. State of Punjab & Anr. (2008) 16 SCC 417 wherein sanctity of standing orders 1/89 was considered.

16. Besides, reference was made to examination and cross examination of public witness PW10 Puran Chand, in whose presence contraband of each capsule was tested and panchnama was prepared, to submit that this witness in his cross-examination has stated that only 55 capsules were tested in his presence and that no writing work was done. He has further stated that capsules were not handed over to the doctors at any point of time, whereas the stand of NCB is that the capsules were in the safe custody of doctor from 29.03.2015 till 31.03.2015, and thereafter, these were given by the doctor to the officer concerned. According to petitioner, the deposition of this witness BAIL APPLN. 812/2021 Page 12 of 17 falsify the case of respondent/NCB. Reliance was also placed upon deposition of PW3 Ajay Sharma, Assistant Chemical Examiner, CRCL, Delhi in support of petitioners case.

17. It was further submitted that procedure prescribed under Section 50 of NDPS Act has not been complied with, as no Gazetted Officer/Magistrate was called at the time of search and even notice under Section 50 contained overwriting on the reply of petitioner. Further submitted that despite knowing that petitioner was concealing narcotic in his stomach and NCB own admission that petitioner felt discomfort, he was first taken to NCB office for recording of statement and thereafter, hospital. No record or name of the doctor in whose presence these capsules were ejected at different intervals of time and in whose custody capsules remained from 29.03.2015 till 31.03.2015 and even discharge summary is silent on this aspect. The Panchnama prepared for seizure of contraband does not mention the name of the medical officer or doctor or Chief Medical Officer and none of these witnesses have been cited by respondent/NCB. Moreover, petitioner had retracted from his statement at the first available opportunity.

18. Reliance was also placed upon decision of Honble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882. In BAIL APPLN. 812/2021 Page 13 of 17 addition, reliance was also placed upon decision of this Court dated 04.02.2021 in Bail Appln. 3491/2020, titled as Gopal Das Vs. NCB; order dated 25.01.2021, in Bail Appln. 4165/2020, titled as Ashwani @ Sonu Vs. The State; order dated 16.03.2020, in Bail Appln.191/2020, titled as Uruakpa Ahmed @ Baba Don Vs. State. Further, reliance is placed upon decision of a Coordinate Bench of this Court dated 28.05.2015 in Crl.A. 1113/2011, Edward Khimani Kamau Vs. The Narcotic Control Bureau.

19. The aforesaid submissions advanced by learned counsel for petitioner were vehemently opposed by learned standing counsel for NCB who submitted that petitioner is a foreign national and is facing trial for illegal trafficking of contraband drugs in huge commercial quantity and if released on bail, there is every likelihood of his jumping the bail.

20. Learned Standing Counsel for NCB submitted that during search, procedure prescribed under Section 50 of NDPS Act was fully complied with and the seizure and drawn of sample from the recovered substance was done in accordance with Section 67 of NDPS Act. He further submitted that the learned trial court keeping in mind the recoveries made from petitioner and also bar of Section 37 NDPS Act, has rightly dismissed his application for bail. BAIL APPLN. 812/2021 Page 14 of 17

21. Reliance was placed upon decision of Punjab & Haryana High Court dated 06.07.2015 in CRA No. 826-DB of 2009, titled as Sucha Singh & Anr. Vs. State of Punjab. Reliance was also placed upon decision in State of Kerala & Ors. Vs. Rajesh & Ors. (2020) 12 SCC 122 to submit that the Honble Supreme Court has categorically interpreted the mandate and rigors of Section 37 NDPS Act and denied bail to the accused person.

22. Further submitted that guidelines enumerated in the Standing Order No.1/88 and 1/89 have been complied with and there is no violation as alleged by the petitioner. He further submitted that however, these are internal advisory guidelines of the department for guidance purpose and are not gazetted notified and hence, these guidelines cannot be interpreted as a Statute of law.

23. Learned standing counsel submitted that trial is in progress and only one prosecution witness remains to be examined and at this fag end of trial, the present petition deserves to be dismissed.

24. The rival contentions raised by both the sides have been heard at length and material placed on record has been perused.

25. It has been categorically stated in the complaint in question that notice under Section 50 of the NDPS Act was issued to the accused Bobby Collins BAIL APPLN. 812/2021 Page 15 of 17 Anagor by Sh. B.L.Bairwa, IO, NCB and he was also explained of his legal rights that if he desires his search can be conducted before a Magistrate or a Gazetted officer to which he denied and also wrote the same on the Notice under Section 50 of the NDPS Act. It is further noted that Sh.CSK Singh, IO offered their personal search to petitioner, to which also he refused. Thereafter, petitioner was taken to the CISF room where his baggage was physically examined but nothing was recovered from his personal search.

26. With regard to compliance under Section 67 of the Act, it has been averred in the complaint that once the accused/petitioner disclosed carrying pellets/ capsules in his stomach, he was served with notice under Section 67 of the Act, on which he requested the NCB officers to take him to NCB office to enable him to tender his voluntary statement. Petitioner recorded his voluntary statement in his own handwriting in which he accepted having swallowed pellets/capsules of drugs and requested to take him to hospital.

27. It is further averred in the complaint that all the pellets/capsules recovered from the stomach of petitioner were found to be 65 in number. They all were in oval shape and same size. One of the capsules was cut open and found to contain white powdery substance and when it was tested with the field testing kit, it gave positive result for cocaine. Similarly, all the BAIL APPLN. 812/2021 Page 16 of 17 pellets/ capsules were cut open and all found to contain white powdery substance. A small amount of powder was taken separately from each packet and tested separately with the help of field testing kit which gave results for cocaine. Since all the recovered cocaine from 65 capsules were of same size, packaging, texture, colour and property, they were transferred to a polythene packet and weighed. It came out to be 1.320 kg, out of which two samples of 5 gms each were drawn and put inside two zip lock pouches. The process was completed in the presence of CSK Singh, Investigating Officer and two independent witnesses and after completion of other necessary procedure, the sample so obtained and marked was sent to the Chemical Examiner, CRCL.

28. Pertinently, the petitioner has approached this Court when only one prosecution witness remains to be examined and trial is at the fag end. During the course of hearing, learned counsel sailed this Court through examination and cross-examination of witnesses PW-3 and PW-10 to point out various infirmities in the prosecution case. Prosecution evidence is yet to be concluded and testimonies of other witnesses are not before this Court, hence, it would not be worthwhile to scrutinize the statements of these two witnesses in piecemeal. Furthermore, in what way and manner the BAIL APPLN. 812/2021 Page 17 of 17 prosecution failed to follow the procedure prescribed under the Act, can be established by the petitioner during his evidence in defence. The pleas so urged before this Court can also be agitated before the trial court at the time of final arguments.

29. In the aforesaid view of the matter, without going into the merits of the case, this petition is accordingly dismissed. (SURESH KUMAR KAIT) JUDGE APRIL 19, 2021

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