Anthony Umeh v. State ., Delhi High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Bail Appln. 851/2021

Disposition

dismissed

Advocates

Mr. Amjad Khan, Advocate.
Mr. Amit Gupta, APP for the State.

Judges

Justice Mukta Gupta

Acts

Section 42 NDPS Act
Section 52A(2) (a) of NDPS Act
Sections 42, 50, 52, 52A, 55 and 57 NDPS Act
Section 57 of NDPS Act
Sections 42 and 57 of NDPS Act
Section 14 of the Foreigners Act
Section 50 NDPS Act
Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Section 50 of the NDPS Act
Section 50 NPDS Act

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Smart Summary

Factual and Procedural Background

This is an order of the High Court of Delhi (Hon'ble Ms. Justice Mukta Gupta) reserved on 20 May 2021 and decided on 6 July 2021 in Bail Application No. 851/2021 filed by Anthony Umeh (petitioner). The petitioner sought regular bail in respect of FIR No. 109/2015 registered at PS Crime Branch, Delhi, in which offences were alleged under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and Section 14 of the Foreigners Act.

The prosecution case, as recorded in the charge sheet and summarized by the Court, is that on 23 July 2015 SI Shiv Darshan (Narcotics Cell, Crime Branch) received secret information that two African nationals (Anthony and Ikenna) would be carrying heroin by parcel near Government School, Jain Road, Uttam Nagar. A raiding party proceeded to the spot late in the evening, observed two persons matching the description, and after attempting to associate witnesses and identifying them via an informer, overpowered and apprehended them. Notices under Section 50 NDPS Act were said to have been served; the petitioner was personally searched (no contraband was found on him) and the co-accused Agbahia Ikenna was found in possession of a cardboard box which, upon checking and field-testing, was found to contain heroin (total weight 800 grams). Samples were taken and the remaining contraband was sealed and seized. Relevant forms and entries were made and the FIR was registered.

The petitioner remained in custody (noted in the petition to be approximately five years and eight months at the time of this order). After hearing contentions on compliance with statutory NDPS procedures and on the Foreigners Act charge, the Court dismissed the bail application and ordered upload of the order to the Court website.

Legal Issues Presented

Whether the petitioner is entitled to regular bail in FIR No. 109/2015 involving alleged recovery of heroin and charges under Section 29 NDPS Act and Section 14 of the Foreigners Act.
Whether mandatory safeguards under Section 50 of the NDPS Act (personal search notice and opportunity to have search before a Gazetted Officer/Magistrate) were complied with.
Whether samples and case property were handled in conformity with NDPS statutory requirements, including Sections 52A(2)(a) and 57, and applicable precedents/standing orders (e.g., sample-drawing procedure and time of deposit).
Whether the charge under Section 14 of the Foreigners Act was made out in view of the petitioner's claim regarding passports/visa.

Arguments of the Parties

Petitioner's Arguments (as presented in the opinion)

The petitioner contended that he had entered India on a valid visa and therefore an offence under Section 14 of the Foreigners Act was not made out.
With respect to the NDPS offence, learned counsel argued that if recovery is from the hand or vehicle of an accused, a personal search notice under Section 50 NDPS Act must be given; in this case, no proper notice under Section 50 was given, entitling the petitioner to bail on that ground.
The petitioner asserted that no narcotic substance was recovered on his person; the contraband was allegedly carried by the co-accused in a cardboard box under his armpit, which the petitioner described as highly improbable and indicative of false implication.
There was allegedly no evidence (for example, telephone records) linking the petitioner to the main accused or to the offence.
The petitioner claimed procedural irregularities: the entire contraband was allegedly collected together and then samples were drawn (contrary to the law as per Supreme Court/this Court and Standing Order No. 1/89 para 2.8); delay in receipt of samples by PW-4 (samples allegedly taken on 24 July 2015 but received by PW-4 on 27 July 2015 — a three-day delay); contradictions in witness descriptions of the recovered powder; and non-compliance with Section 57 NDPS Act as ACP Ravinder Tyagi (PW-7) could not state when the special report was placed before him.
Reliance was placed on several precedents to support contentions regarding illegal procedure and entitlement to bail.

Respondent's Arguments (State / Learned APP)

The learned APP for the State asserted that the status report and witness statements filed with the charge sheet demonstrate compliance with mandatory NDPS provisions, including Section 50 and Sections 52, 52A, 55 and 57.
The State's position, as summarized by the Court, was that the petitioner and co-accused were apprehended with the parcel and that all mandatory provisions were complied with during the raid, seizure, sampling and subsequent deposit with the Moharar Malkhana and sending of samples to the FSL.

Table of Precedents Cited

The following cases were cited in the petitioner's submissions (as recorded in the opinion). The Court's response to the underlying procedural/contention supported by these precedents is summarized in the third column based on what the opinion records.

Precedent	Rule or Principle Cited For	Application by the Court
AIR 2014 SC 1384 — State of Rajasthan vs. Parmanand & Anr.	Cited by petitioner in support of contention regarding non-compliance with NDPS sample-drawing/related procedural safeguards and entitlement to bail.	The Court noted the petitioner's reliance on this decision but, on the facts and record before it, found no merit in the procedural contentions and dismissed the bail application.
2011 (5) SCC 123 — Ashok @ Dangra Jaiswal vs. State of M.P.	Cited by petitioner to support arguments on NDPS procedural non-compliance and consequences thereof.	The Court considered the submissions and documentary/witness evidence and concluded that the mandatory provisions were complied with; the petitioner's reliance on these authorities did not persuade the Court to grant bail.
2018 (252) DLT 748 — Earnest @ Aik vs. State	Cited by petitioner regarding sampling/NDPS compliance and related bail considerations.	The Court, after reviewing the factual matrix and records of compliance, rejected the contention and dismissed bail; it did not accept that reliance on this decision entitled the petitioner to relief in the present facts.
2015 SCC OnLine Del. 9860 / MANU/DE/1748/2015 — Edward Khimani Kamau vs. The Narcotics Control Bureau	Cited by petitioner for principles relating to NDPS procedures and sample-handling.	The Court recorded the reliance but found that the prosecution had complied with mandatory statutory requirements and therefore the precedent did not alter the result in favour of the petitioner.
2012 (191) DLT 403 — Basant Rai vs. State	Cited by petitioner in support of the contention about procedural irregularities and their impact on prosecution.	The Court examined the documentary and witness evidence and concluded compliance; the petition seeking bail was dismissed despite the cited authority.
AIR 2005 SC 4248 — Amarsingh Ramjibhai Barot vs. State of Gujarat	Cited by petitioner on matters relating to NDPS/related procedural safeguards and consequences for admissibility/entitlement to bail.	The Court noted the citation but, based on facts and evidence of compliance, did not find the petitioner's reliance sufficient to grant bail and dismissed the petition.
N. Ayyappan vs. State — Bail Appln. 405/2005 (decided 21 Apr 2005)	Cited by petitioner for propositions relevant to bail/NDPS procedure.	The Court recorded the citation; having found the statutory procedures complied with on the record, the Court refused bail and did not apply that case to alter the outcome.

Court's Reasoning and Analysis

The Court proceeded by addressing the petitioner's individual contentions against the backdrop of the prosecution case and the evidence/statements on record:

Section 14 of the Foreigners Act: The petitioner had contended that he entered India on a valid visa. The Court noted the petitioner's own account that an earlier passport (No. A03078652) was lost and a new passport (No. A03823448) was issued, but at the time of arrest he was not in possession of a valid passport or a valid visa. On this factual basis the Court rejected petitioner’s contention and held Section 14 could be invoked.
Compliance with Section 50 NDPS Act: The petitioner contended that Section 50 protections were not complied with. The Court reviewed the notices and records: two separate notices under Section 50 were served, and although the copy annexed with the petition might not show the petitioner’s reply, the copy filed with the charge sheet bore signatures and the petitioner's (and co-accused’s) handwritten replies exhibited as PW-2/C and PW-2/D. The Court therefore concluded that compliance with Section 50 had been effected and the contention that it was not complied with was without merit.
Nature of recovery and sampling procedure: The Court recorded the prosecution narrative that the cardboard box contained 15 packets, five of which contained cream-coloured powder; each of those packets had been separately tested by field-testing kit and found positive for heroin. The Investigating Officer then mixed the contents of those five packets (total 800 grams) and two samples of 5 grams each were taken. While the petitioner argued samples should have been drawn from each packet, the Court observed that since each packet had been tested individually and found to contain heroin, the mixing raised at that stage only issues of percentage purity which are matters for trial and not for bail determination. Therefore, the manner of mixing did not vitiate the prosecution case at the bail stage.
Alleged delay in deposit of case property and sending samples to FSL: The petitioner raised a delay contention (samples allegedly taken on 24 July but received by PW-4 on 27 July). The Court examined the timeline: the recovery occurred late (after 10.25 PM on 23 July 2015), formalities were completed and the raiding party left the spot at 2:30 AM, a rukka was sent and received at 3:35 AM at PS Crime Branch; thereafter parcels, samples, FSL form and seizure memo were handed over to the SHO, deposited in the Moharar Malkhana and entries made in Register No.19. ACP Ravinder Kumar Tyagi (PW-7) stated he received the DD and the special report on 24 July and that the contraband and samples were kept in Moharar Malkhana until samples were sent to FSL and received by Dr. Adesh Kumar (PW-6) on 27 July 2015. The Court found this explanation consistent with the record and concluded the claim of undue delay did not succeed.
Witness contradictions and overall record: The petitioner pointed to contradictory descriptions of the powder's colour by different witnesses. The Court summarized the field-testing and weighing results and took the view that such variation in witness description or issues regarding purity would be matters for trial and did not establish entitlement to bail.
Overall assessment and reliance on precedents: Although the petitioner relied on several decisions and standing orders to challenge the sampling procedure and to seek bail, the Court, after reviewing the sequence of events, documents (including Section 50 notices, seizure memos, FSL form, Malkhana entries) and witness evidence, concluded that mandatory statutory requirements under the NDPS Act were complied with. Consequently, the Court found no merit in the bail application.

Holding and Implications

Holding: The Court dismissed the bail application. The core ruling is: THE PETITION FOR REGULAR BAIL IS DISMISSED.

Implications:

The direct effect of the decision is that the petitioner, Anthony Umeh, was not granted regular bail in FIR No. 109/2015 and remains subject to trial and prosecution as per the charge sheet.
The Court found that statutory provisions under the NDPS Act (including Section 50 and related provisions concerning seizure, sampling and deposit) and procedural formalities had been complied with on the facts and record before it, and therefore the petitioner's procedural objections did not warrant bail at this stage.
The opinion does not purport to lay down a new legal precedent; rather, on the particular facts and evidence, the Court refused bail and recorded its findings of compliance. No broader or novel legal principle was announced by this order beyond its application to the case at hand.

Order uploaded on the website of the Court. (Order dated: 06 July 2021; Hon'ble Ms. Justice Mukta Gupta)

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Anthony Umeh v. State .

Bail Appln.851/2021 Page 1 of 7

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 20^thMay, 2021 Decided on: 6th July, 2021 + BAIL APPLN. 851/2021

ANTHONY UMEH ..... Petitioner Represented by: Mr.Amjad Khan, Advocate. Versus

STATE .... Respondent

Represented by: Mr.Amit Gupta, APP for the State.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By this petition, petitioner seeks regular bail in case FIR No.109/2015 under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and Section 14 of the Foreigners Act, registered at PS Crime Branch, Delhi

2. Learned counsel for the petitioner contends that the petitioner entered India on a valid visa, thus an offence under Section 14 of the Foreigners Act is not made out. As regards offence punishable under Section 29 NDPS Act is concerned, learned counsel for the petitioner contends that even if the alleged recovery is made from the hand or vehicle however, personal search of an accused is taken, Section 50 of the NDPS Act will be applicable and since in the present case no notice under Section 50 NDPS Act was given, the petitioner is entitled to be released on bail on this ground itself. No recovery of any narcotic substance was effected from the personal search of the petitioner and on the basis of a box of 2 feet length, 1.5 feet width and 1 feet height carried by the co-accused Agbahia Ikenna under his armpit which

is highly improbable, the petitioner has been falsely implicated. There is no evidence in the form of telephonic conversation or otherwise to link the petitioner with the main accused. The petitioner has been languishing in jail for the last five years and eight months and the trial is likely to take some time. Further as per the case of the prosecution, the entire alleged contraband was collected together and thereafter samples were drawn which is contrary to the law laid down by the Supreme Court, this Court and para-

2.8 of the Standing Order No.1/89. Only seven witnesses of the prosecution have been examined till date and seven more witnesses are still required to be examined. Reliance is placed on the decisions reported as AIR 2014 SC 1384 State of Rajasthan vs. Parmanand & Anr.; 2011 (5) SCC 123 Ashok @ Dangra Jaiswal vs. State of M.P.; 2018 (252) DLT 748, Earnest @ Aik vs. State; 2015 SCC OnLine Del. 9860/MANU/DE/1748/2015 Edward Khimani Kamau vs. The Narcotics Control Bureau; 2012 (191) DLT 403 Basant Rai vs. State; AIR 2005 SC 4248 Amarsingh Ramjibhai Barot vs. State of Gujarat; and N.Ayyappan vs. State, Bail Appln. 405/2005 decided on 21^st April, 2005.

3. It is further contended that there is violation of Section 52A(2) (a) of NDPS Act in so far as the FIR was registered on 24^thJuly, 2015 when the alleged samples were taken however, they were received by PW-4 on 27^th July, 2015 after a considerable delay of three days. Some of the witnesses stated that cream colour powder was recovered; whereas the other stated that light brown powder was recovered; hence there are major contradictions in the testimony of the witnesses. Section 57 of NDPS Act has also not been complied with as ACP Ravinder Tyagi PW-7 was not in a position to inform as to when the special report was placed before him by the Reader.

4. Learned APP for the State has taken this Court through the status report as also to the statements of the witnesses filed along with the charge sheet and states that there is no violation of the mandatory provisions of Section 50 NDPS Act or Section 57 or Section 52A(2) (a) NDPS Act. The petitioner and the co-accused Agbahia Ikenna were apprehended along with the parcel containing heroin and all mandatory provisions were complied with.

5. Case of the prosecution in the charge sheet is that on 23^rdJuly, 2015 SI Shiv Darshan of Narcotics Cell, Crime Branch received a secret information that two African nationals namely Anthony and Ikenna, residing somewhere in Delhi and exporting heroin through parcel would be coming between 10.00 PM to 10.30 PM on that day near Government School, Jain Road, Uttam Nagar, Delhi along with a parcel of heroin and if raid is conducted both of them can be apprehended with the parcel of heroin. SI Shiv Darshan shared this information with Inspector Vivek Pathak, who shared the same with ACP, Narcotics Cell Shri Ravinder Kumar Tyagi and was directed to take legal action. The information was recorded vide DD No.25A on 23^rdJuly, 2015. Copy of the same was also produced before Inspector Vivek Pathak in compliance of Section 42 NDPS Act.

6. The raiding team led by SI Shiv Darshan along with the informer, IO bag, field testing kit, camera, electronic weighing machine etc. reached the spot and tried to associate passers-by in the investigation however, none was willing to join in. At about 10.25 PM two African nationals who were coming on feet from Dwarka Mor side were spotted. One of them was wearing a white colour shirt and having a cardboard box in his left armpit whereas the other was wearing a half sleeves t-shirt. The informer identified

them as Anthony and Ikenna respectively and left the spot. In the meantime, Anthony, who was having the cardboard box handed over to Ikenna who kept the same in his left armpit and both of them were talking to each other while walking. They were overpowered by the raiding team and they disclosed their names as Anthony Umeh, the present petitioner and Agbahia Ikenna. They were informed about the secret information and about their legal rights that search could be conducted in the presence of a Gazetted Officer or a Magistrate and that they could take prior search of the raiding team. Two separate notices under Section 50 NPDS Act were served upon them but they refused to take search of the raiding team and vehicle and refused to get searched before a Gazetted Officer or a Magistrate. Search of Anthony Umeh, the petitioner was conducted first during which no contraband was recovered. Thereafter search of Agbahia Ikenna was conducted and the cardboard box which was in his possession was checked, which was found to be containing heroin when tested by field testing kit and on weighing the same was found to be 800 grams. Two samples of 5 gram each marked 'A' and 'B' were taken and the remaining contraband was converted into a cloth parcel and marked as 'C'. The material of cardboard box was kept in a white plastic katta and its mouth tied with cloth and converted into a pullanda marked as 'D'. FSL form was filled and pullandas were sealed with the seal of '8B PS NB DELHI'. Seal was also put on the FSL form. The Pullandas were taken into possession through seizure memo and the FIR was registered. The Pullandas and FSL form were produced before the SHO, Crime Branch and the investigation entrusted to SI Rajnikant of Narcotics Cell. The prosecution thus claims that all mandatory provisions, that is, Sections 42, 50, 52, 52A, 55 and 57 NDPS Act were duly

complied with.

7. As regards the contention of the petitioner that Section 14 of the Foreigners Act is not made out, it may be noted that claim of the petitioner was that he was holding Passport No.A03078652 which was lost and he obtained a new passport bearing No.A03823448. It is on this new passport that his visa for stay in India was regularised and at the time when the petitioner was arrested he was not in possession of a valid passport or a valid visa. Thus the contention of learned counsel for the petitioner that Section 14 of the Foreigner's Act cannot be invoked deserves to be rejected.

8. The witnesses have clearly stated that when the petitioner and the co- accused were apprehended, the accused stated that they were unable to understand Hindi but could understand English. Copy of notice under Section 50 NDPS Act annexed by the petitioner, with the petition is one which was handed over to the petitioner which obviously would not bear the petitioner's reply however, the one filed in the Court with the charge sheet bears the signatures of SI Shiv Darshan and the two police witnesses besides the petitioner and the co-accused in their own handwriting have noted their replies which were exhibited as PW-2/C and PW-2/D respectively. Thus the contention of the petitioner that Section 50 NDPS Act has not been complied with is also meritless.

9. According to the case of the prosecution on opening the cardboard box it was found to be containing 15 packets wrapped with silver gota on gatta pieces and all the 15 packets were checked after removing the gatta and gota and in five packets it was found containing cream colour powder wrapped in gatta and both sides of the gatta were laminated with plastic. Cream colour powder from these five packets was taken out on a transparent

polythene and was checked with the field testing kit which gave positive of heroin. On weighing on electronic weighing machine it was found to be 800 grams and thus two samples of 5 grams each were taken and the remaining 790 grams heroin was also sealed in the cloth pullanda.

10. Contention of learned counsel for the petitioner that samples should be drawn from each of the packet though merits consideration however, does not vitiate the case of the prosecution for the reason as per the prosecution all five packets were separately tested by the field testing kit and they were found to be containing heroin. After having checked from the field testing kit, the Investigating Officer mixed the contents of the five packets which turned out to be 800 grams in total out of which two samples were drawn. Once each of the packets contained heroin at best the issue would be of percentage of purity which issue is not required to be considered at this stage.

11. Contention of learned counsel for the petitioner that the case property and the samples were deposited with undue delay also deserves to be rejected for the reason the alleged recovery was made after 10.25 PM on 23^rd July, 2015 and after completing all the formalities the raiding party including the witnesses left the spot at 2.30 AM whereafter rukka was sent and the same was received at 3.35AM at PS Crime Branch and immediately the parcels containing the contraband, samples, FSL Form, carbon copy of the seizure memo etc. were handed over to Inspector Ravinder Kumar, SHO, PS Crime Branch whereafter they were deposited with the Moharar Malkhana and relevant entries were made in Register No.19.

12. ACP Ravinder Kumar Tyagi, PW-7 has clearly stated that on 24^th July, 2015 he received the copy of DD No.25A in his office which was put

up by the reader as also a special report under Section 57 of NDPS Act prepared by SI Shiv Darshan and forwarded by Inspector Vivek Pathak which indicates that compliances under Sections 42 and 57 of NDPS Act were done. On 27^thJuly, 2015 the samples were sent to FSL which were received by Dr.Adesh Kumar, PW-6 at FSL. From 24^thJuly, 2015 to 27^th July, 2015 the contraband and the samples along with the CFSL form were kept in the Moharar Malkhana and the relevant entries in this regard were made in Register No.19 and the witnesses have deposed in relation thereto. Consequently, this Court finds no merit in the present bail application seeking grant of regular bail at this stage and the petition is dismissed.

13. Order be uploaded on the website of this Court.

(MUKTA GUPTA)

JUDGE

JULY 06, 2021

'vn'

Anthony Umeh v. State .

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as presented in the opinion)

Respondent's Arguments (State / Learned APP)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Anthony Umeh v. State .

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