SURESH KUMAR SHARMA v. DIRECTORATE OF REVENUE INTELLIGENCE

powder. Accused no.1- Peter, confirmed that the said powder was in fact heroin. In these circumstances, the statement of the accused no.1 (Danon Armand Erick @ Peter), was recorded on

23.9.2008, 24.9.2008 and 25.9.2008. Copy of these statements have been placed on record and have been referred to by learned senior counsel for the petitioner. A bare reading of these statements would show that accused no.1 (Danon Armand Erick @ Peter) has nowhere named the petitioner herein as his accomplice or stated that the petitioner was in any manner involved or connected either with the supply, possession or transportation of heroin. In his statement accused No.1– Peter has given his brief background and has stated that he had come to India on a tourist visa in June, 2008. Initially he stayed at a hotel in Mumbai. Thereafter he met one Emmanuel, a person of African origin. Mr. Emmanuel asked him as to why had he come to India. Accused no.1– Peter informed him that he was a good BAIL APPLN.NO.1087-2009 3 of 13 football player and was looking for some work. Mr.Emmanuel informed him that he was working in a company that produces industrial gear and then he gave an offer to work for him. It was decided that accused no.1– Peter would collect industrial gear from Mr.Emmanuel and send the same from Delhi to South Africa through a courier company named M/s.Suman Business Centre and that he would be paid a sum of 300 US $ per trip. He was informed by Mr.Emmanuel that gears were special gears which contained concealed drugs and he had to deliver the same to the courier agent. According to accused no.1 (Danon Armand Erick @ Peter), he was to deliver the parcels to the courier company. In the statement recorded on 25.9.2008, accused no.1- Peter has given out the procedure which had been followed. He stated that he booked two consignments of Iron Gears with concealed heroin for South Africa on 22.9.2008 through a courier agent of M/s.Suman Business Centre. He also stated that M/s.Suman Business Centre was paid @ Rs.1000/- per kilogram of the gross payments of the packages so handed over by him for export. He also identified the two commercial invoices.

4. According to the petitioner, his father was working in the Ministry of Agriculture and he retired in September, 1988; his mother is a house-wife; and his wife-Suman Sharma expired in the year 2002 and besides that he also had a son and a married daughter. It is stated that the petitioner had joined as an apprentice in the National Fertilizers Limited, Delhi in October, 1979 and later on he took VRS in the year 2001 from the National Fertilizers Limited. He had thereafter started his own business in the name BAIL APPLN.NO.1087-2009 4 of 13 and style of M/s.Suman Business Centre, providing service for typing/STD/PCO/FAX etc. In the year 2003 he had started courier service as well. In his statement he has stated that he was booking the consignment of iron gears for accused no.1- Mr.Peter from time to time. As for booking an international parcel, commercial invoices were required, hence at the request of accused no.1– Peter he generated two commercial invoices. In his statement he further stated that invoices were generated on his computer as he was to be provided some extra charges. No doubt the petitioner has in his statement stated that he was aware that the consignment contained concealed drugs and he was informed that narcotic drugs will be concealed in the iron gears, however on 5.2.2009, the petitioner retracted from his statement.

5. Learned counsel for the respondent– DRI has strongly opposed this application for grant of bail on the ground that there is a direct nexus between accused no.1 and the petitioner herein. He also submits that the invoices would show direct involvement of the petitioner. Learned counsel further submits that there is an embargo of Section 37 of the NDPS Act and while granting bail, this Court must take into consideration the parameters laid in Section 37 of the NDPS Act. It is submitted that unless and until the conditions therein are satisfied, bail ought not to be granted. It is also submitted that the trial court while declining the bail to the petitioner has rightly observed that the contraband used to be sent by concealing the same in metal gears from time to time through Shri S.K. Sharma (petitioner), who was running a BAIL APPLN.NO.1087-2009 5 of 13 courier company and for which he was also paid excess amount.

6. I have heard learned counsel for the parties and given my thoughtful consideration to the matter. Learned counsel for the petitioner has submitted before me that this is a fit case for grant of bail in view of the fact that admittedly as per the complaint, heroin was not seized from the possession of the petitioner. Accused no.1 in his statement recorded has also not named the petitioner as an accomplice or as in any manner being involved or connected with the supply, possession or transportation of heroin. Further, the petitioner had charged extra amount only for the purpose of generating an invoice, as commercial invoice was required for booking international parcels and which was done on the instructions of accused no.1. Thus it cannot be said that petitioner was in any way conscious or aware of heroin which was concealed in the iron gear. Further, no reliance can be placed on the statement made under section 67 of the NDPS Act as the same was not voluntary and the petitioner on 5.2.2009 had retracted from his statement made on 25.9.2008.

7. Section 37 of the NDPS Act reads as under: “37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973.(2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the BAIL APPLN.NO.1087-2009 6 of 13 application the court is satisfied that there are believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. reasonable grounds (2) The limitations on granting of bail specified in clause (b)of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (12 of 1974), or any other law for the time being in force on granting of bail.].”

8. In the case of Union of India Vs. Shiv Shanker Kesari reported at (2007) 7 SCC 798, the Apex Court while elaborating upon section 37 of the NDPS Act, held as under: “6. As the provision itself provides that no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. facie grounds.

7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

8. The word “reasonable” has in law the prima facie meaning of circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. reasonable regard “7. … In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 states it would be unreasonable to expect an exact definition of the word „reasonable‟. Reason varies in its conclusions according to the idiosyncrasy of thinks. The in which he circumstances reasoning which built up the old scholastic individual, BAIL APPLN.NO.1087-2009 7 of 13 logic sounds now like the jingling of a child‟s toy.” (See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar1 (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd.2

9. “9. … It is often said that „an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space‟. The author of Words and Phrases (Permanent Edn.) has quoted from Nice & Schreiber, In re3 to give a plausible meaning for the said word. He says „the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to determined‟. reasonable constitutes It is not meant to be expedient or convenient but certainly something more than that.”†4

10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd.5)

11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

12. Additionally, the court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

9. Applying the principles laid down to the facts of this case, sub- section (1) of section 37, NDPS Act envisages that the Public Prosecutor should have an opportunity to oppose the bail application. In this case notice was issued and I have heard