The Bombay High Court has granted bail to the Customs Clearing Agent who has alleged involvement in importing 191.60 kgs of Heroin.
The bench of Justice Bharat P. Deshpande has observed that a huge commercial quantity of heroin was found in the container, but except statement under Section 67 of NDPS Act which is otherwise not admissible in evidence as far as admissions/confessions of the Applicant are concerned, there is hardly any corroborative evidence. Thus, the provisions of Section 37 of the NDPS Act would not be considered as an embargo in the present matter even though commercial quantity was detected and seized.
The Applicant was working as a Clearing Agent. It was alleged that to have transported thedrugs and thus except the statements recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) there is no corroborative material to implicate the Applicant with the offence.
Though complaint is filed by NCB and cognizance of it was taken by the concerned Special Court, there is no progress in the matter. The total 54 witnesses are disclosed in the complaint for the complainant to be examined. However, till date there is absolutely no progress in the matter though Applicant is in custody from 9th August 2021.
The applicant submitted that Section 37 of the NDPS Act will have to be considered in view of long incarceration of the Applicant without any progress in the trial. The Applicant is having a right to a speedy trial and if such right is denied to him, rigors of Section 37 of the NDPS Act cannot be made applicable. He would further submit that Applicant is ready and willing to abide by conditions while granting bail as he was doing his business activity as a Clearing Agent and there is no criminal antecedents.
The department contended that Accused acted as an agent for clearing the consignment and on receipt of the information from the customs, a team of the complainant visited Navkar Corporation wherein a container imported under the bill of entry dated 1st August 2020 was kept and search in presence of two panch witnesses and Accused. During the said search, 191.60 kgs of heroin was detected and seized.
The court noted that failure to conclude trial within a reasonable period resulting in prolong incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India and as such, conditional liberty overriding the statutory embargo created under Section 37 of the NDPS Act could be considered.
The court found that the applicant is in custody from last 3 years and till date there is absolutely no progress in the said matter. The conclusion of trial in near future is again a remote possibility. Accordingly, the Applicant is entitled for the bail in connection with the present matter. However, on strict conditions.
Firstly, applicant shall not tamper with the prosecution witnesses directly or indirectly or showing inducement, threat or promise to any person acquainted with the fact of the case so as preclude him from disclosing the fact to the court.
Secondly, applicant shall not leave India without prior permission of the Learned Special Court.
Thirdly, applicant shall deposit his passport, if any, with the Learned Trial Court.
Fourthly, applicant shall attend the Trial Court proceedings regularly and shall not ask for exemption unless it is necessary to do so.
Case Details
Case Title: Kondiba Gunjal Versus The Union of India
Case No.: Criminal Bail Application No.3530 Of 2022
Date: 28th November 2024
Counsel For Applicant: Dr. Sujay Kantawala
Counsel For Respondent: Thakker Ruju
