Ms. Ntombovuyo Noluvoyo Precious Mafanya v. Custom

TALWANT SINGH, J OCTOBER 7, 2022/pa

Click here to check corrigendum, if any

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 07.10.2022 + BAIL APPLN. 1656/2022 MS. NTOMBOVUYO NOLUVOYO PRECIOUS MAFANYA ..... Petitioner Through: Mr. Adarsh Priyadarshi and Mr. Sachin Tomar, Advocates. versus CUSTOM .....Respondent Through: Ms. Anushree Narain, Advocate. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. This is an application for regular bail in case SC No.441453/2016. The applicant was arrested on 04.05.2016 and since then, she is stated to be in custody. 1.1 The case of the prosecution is that on receipt of information that the petitioner was coming by Flight No. EK-512 on 03.05.2016 and that she might be carrying some contraband/narcotic drugs, she was intercepted near the exit gate of Customs Arrival and on opening of her Dubai Duty Free poly bag, 41 spheroid shaped pellets wrapped in transparent tape were found, which were cut open and they were found to be containing white coloured substance, which was tested and found positive for Cocaine, weighing 595 grams. 1.2 As per the petitioner, nothing incriminating was recovered from her. The goods were not seized in accordance with the law and sampling was not done as per the prescribed procedure; the forensic report does not state the percentage of Cocaine contained in the recovered contraband and the only evidence qua the petitioner is her alleged confessional statement, which is not admissible. 1.3 The bail application filed by the petitioner was dismissed on 03.03.2022. It has been submitted that in view of the various judgements of the Apex Court and the High Courts, the petitioner is entitled to bail. She has no criminal antecedents and her conduct in jail is satisfactory; she has never been convicted by any Court of law, so it has been prayed that she may be released on bail during the pendency of trial and she is ready to abide by all the conditions to be imposed by this Court. 2. Notice was issued. 3. The respondent has filed reply. 3.1 In the reply, the circumstances under which the applicant was arrested, have been mentioned. It has been stated that the applicant had made her voluntary statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), wherein she had admitted the recovery of the drugs and other incriminating facts, so after completion of investigation, a complaint under Section 21 and 23 of the NDPS Act was filed before the concerned Court. 3.2 Three witnesses have been already examined and fourth witness is under examination. All the three witnesses have supported the case of the prosecution. The recovery of contraband substance is a matter of record. Due procedure of law was followed during seizure of contraband goods under the NDPS Act and Customs Act. 3.3 Samples were drawn before the learned Magistrate, Dwarka Courts as per details given in the order dated 20.05.2016. A Panchnama dated 04.05.2016 regarding the recovery was produced before learned Metropolitan Magistrate and the same was duly verified after comparing it with the case property. All the proceedings were duly photographed and the said photos were attested by the learned Metropolitan Magistrate on 27.05.2016. 3.4 It has been submitted that the judgements cited by the petitioner are not applicable to the facts of the present case. The respondent has also relied upon certain judgements passed by the Hon'ble Supreme Court and the High Courts. It has been submitted that the mandatory provision of Section 37 of the NDPS Act cannot be ignored. 3.5 In the present case, there is recovery of narcotic drug from the accused in commercial quantity and the same is corroborated by statement of the witnesses and circumstances of the case and there are high chances that the accused would be convicted in the case. 3.6 It has been also submitted that the accused is not entitled for bail as the provisions of Section 37 of the NDPS Act are not satisfied. Moreover, the drug paddlers have to be dealt with strictly as held b