The Single Bench of the Delhi High Court in the case of Ejike Jonas Orji vs Narcotics Control Bureau consisting of Justice Prateek Jalan reiterated that period of incarceration and the likelihood of the trial taking a long time are factors to be considered while deciding bail applications in cases instituted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”).
Facts
A secret information was received by the NCB that a parcel at DHL Express was suspected to contain narcotic substances. An NCB team reached the DHL office and the parcel was opened wherein 200 grams of heroin was discovered. 10 grams were kept in two separate pouches, while 190 grams were separately packed and both were sealed with the NCB seal with Investigating Officer’s (“IO”) sign.
Procedural History
Notices u/s 67 of the Act were issued to all the witnesses and their statements were taken. Mr. Ashish Kanojia (consignor) was also issued a notice u/s 67 of the Act who made a voluntary statement. Based on his statement, an information was then prepared by the IO that the parcel belonged to one Mr. Jonas Orji (consignee), who is a Nigerian national, and is a resident at New Delhi (“the property”). It was stated that Mr. Jonas Orji had called Mr. Ashish Kanojia for delivery of another parcel at his residence. An apprehension was recorded that Mr. Jonas Orji might be involved in drug trafficking, and if apprehended, huge quantity of narcotics may be recovered from him.
A team was sent to the residence of Mr. Jonas Orji. Mr. Ejike Jonas Orji (“applicant herein”), and Ms. Ratharmi Sero (“Ms. Sero”), were present in the house at the time of the search. Both were served with notices u/s 50 of the Act but declined to be searched before a Gazetted Officer or a Magistrate. On their personal search, nothing incriminating was recovered. On searching the house, 265 grams heroin and 170 grams charas were discovered and made into samples as earlier.
Based on the aforesaid discoveries, the applicant was arrested u/s 67 of the Act. The applicant has been in custody for a period of eight years. The applicant first approached the Special Court for bail, which was rejected. The applicant then filed for bail before this Court, which was dismissed as withdrawn with a direction that the Special Court shall endeavor to dispose of the matter. Although his overall conduct is characterized as unsatisfactory due to punishments awarded to him, his jail conduct during the last one year was certified to be satisfactory. No prior involvement of the applicant in any offence was mentioned in the reply filed by the NCB to the present application.
Contentions Made
Applicant: The applicant is entitled to be enlarged on bail on the ground of prolonged incarceration as an undertrial. Reliance was placed on Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India & Ors. (“SCLAC”), Baba Fakruddin Sheikh @ Fakru v. The State (NCT of Delhi), Tofan Singh v. State of Tamil Nadu and so on.
Respondent: SCLAC judgment was expressly stated to be a one-time measure, and applicable only to the State of Maharashtra, not extending to Delhi. The directions given therein were not intended to restrict the powers of the Special Courts u/s 37 of the Act. Since applicant was not an Indian, it was submitted that the normal considerations applicable to proceedings for bail, including the likelihood that the accused would flee from justice or would tamper with the evidence, militate against the grant of bail to the applicant.
Observations of the Court
The Bench noted that in the SCLAC Judgment, the Supreme Court found that the delay in trial, when read with the stringent provisions of Section 37 of the Act, render the fundamental rights of the accused under Articles 14, 19 and 21 of the Constitution in jeopardy. Although the Court declined to quash the charges against the accused on this basis, it accepted the alternative submission that the accused should be released on bail after a certain period of incarceration, if the trial has been delayed beyond a reasonable time. It gave further directions regarding the conditions to be imposed while granting bail.
Various judgments of the Apex Court and this Court were referred to, to conclude that the period of incarceration, and the likelihood of the trial taking a long time, were factors to be considered while deciding applications for bail in cases instituted under the Act and the Court released the applicants therein on bail.
The argument that a different consideration would apply in the case of foreigners did not commend to the Bench.
Judgment
As the applicant had been in custody for eight years already, six PWs are yet to be examined, and on the consideration of the various factors noted above, including the provision of Section 37 of the Act and the various interpretations in the judgments of the Supreme Court and this Court, the Bench was of the view that the applicant was entitled to be released on bail with the following directions:
- He will furnish a personal bond in the sum of ₹1 lakh, with two sureties in the like amount, to the satisfaction of the Special Court/Duty Magistrate.
- His passport will be deposited with the Special Court.
- He will present himself at the office of the NCB every Monday at 11:00 am and will be released within one hour after completion of the formalities. Exemption from this requirement may be granted by the Special Court in exceptional circumstances.
- The Special Court will seek a certificate of assurance from the High Commission of Nigeria, New Delhi, that he shall not leave the country till the trial is concluded and shall appear before the Special Court on each and every date, unless exempted by the Special Court in exceptional circumstances. He will not be released on bail in the absence of such a certificate of assurance.
- He will reside at the address mentioned in the chargesheet which has been verified by the IO. In the event of any change in his address, he will give prior information of the same to the IO and the Special Court.
- He will give his mobile number to the IO and ensure that the mobile number is operational at all times.
- He will drop a pin on Google Maps to ensure that his exact location is always available with the IO.
- He will not tamper with the evidence, directly or indirectly, in any manner.
- He will not contact any of the prosecution witnesses or act in any other manner prejudicial to the trial.
- In the event any further offence is registered against the applicant during the period he is out on bail, the NCB is at liberty to apply to the Special Court for cancellation of the bail granted to the applicant.
- The Special Court will also be at liberty to cancel his bail on account of any violation of the conditions laid down in this order.
Case: Ejike Jonas Orji vs Narcotics Control Bureau
Citation: BAIL APPLN. 997/2022
Bench: Justice Prateek Jalan
Decided on: 13th June 2022
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