Full Judgment
1. This is an application for bail. The Petitioner is prosecuted under Sections 8, 21, 23, 25, 28 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and under Section 135(1) of the Customs Act.
2. The Petitioner is a partner of Messrs. Geeta Travels. He works as a clearing agent. On 7-11-1989 one Onu, foreign national, gave one wooden crate to the Petitioner for sending it to Lagos. Onu had given him travel documents being bills issued by Regal Glass Wares, passenger ticket and passport. He also had handed over the declaration form. Onu informed the petitioner that he would be leaving on 9th or by the next available flight. As it was necessary to mention the date of departure in the instructions form, the Petitioner wrote 9th November 1989 as date of departure. The wooden plank on the top of the crate was not nailed. It was to be checked by the Customs. On 8th November, 1989, the Petitioner opened the crate to make inventory of the articles. He found that the crate contained crockery. The side wooden planks used for packing were rather heavy which arouse suspicion of the Petitioner. The Petitioner, in the presence of his two servants made a small hole in a plank and found that some powder was concealed inside. On two or three occasions before the incident, the Petitioner had informed Mr. Kakkar, Officer from the Narcotic Control Bureau, when attempt was made by foreign nationals to smuggle narcotic drugs. There was no sufficient time to contact Kakkar. The Petitioner decided to inform him on the next day. On 8-11-1989 in the morning the officers of the Customs Department went to the office of the Petitioner and took away the crate. They found that Narcotic drugs was concealed in the wooden planks used for packing the crockery. It is alleged that the Petitioner conspired with Onu to export the narcotics. The petitioner's application for bail has been rejected by the trial Court.
3. Mr. Vakil, learned Advocate for the Petitioner, argued that the statements of the Petitioner and his servants recorded by the Customs authority prima facie do not make out a case of conspiracy or abetment. The Petitioner could have denied the knowledge of the drug concealed in the crate but he, at the earliest opportunity, told the truth in his statement recorded on 8th. He argued that omission on the part of the Petitioner to inform the Directorate of Revenue Intelligence or Customs would not be sufficient to infer that there was a conspiracy. The Petitioner on two or three occasions before the incident, had given information to the Department when found that there was an attempt to export drugs.
4. Mr. Gupte, the learned Special Public Prosecutor for the Customs, argued that the conduct of the Petitioner in not informing the authority immediately would show that there was conspiracy and the Petitioner abetted the offence of exporting narcotics. He argued that under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Petitioner is not entitled to bail.
5. It is not the prosecution case that the Petitioner himself attempted to smuggle the drugs. There is no dispute that Onu had entrusted the crate to the Petitioner for sending it to Lagos as unaccompanied luggage. It is not disputed that the Petitioner is working as a clearing agent. The clearing agent is required to present the unaccompanied luggage for checking by Customs after the person leaves the country. There is no evidence to show that the Petitioner was knowing that the drugs were concealed in the planks when the crate was handed over to him by Onu. In order to find out the contents of the crate, the Petitioner opened the crate and on suspicion made a hole on the plank as it was rather heavy. It was only then found that some drugs was concealed. The crate was opened by the Petitioner in the presence of the two servants. Had there been any conspiracy, the Petitioner would have opened the crate in the presence of his servants. There were laches on the part of the Petitioner in not informing the authorities immediately. But in his statement under Section 108, he stated that he wanted to inform Mr. Kakkar as, on earlier occasions also he had informed him. The Petitioner placed a copy of a letter (Exhibit 'A') which shows that on two occasions the Petitioner had given information to the Department about smuggling narcotics or goods. There is nothing on record to show that the information was given by him for obtaining reward. Prima facie, therefore, there is no evidence to show that the Petitioner conspired with Onu to smuggle narcotics. It is not the prosecution case that the Petitioner made any false declaration or made any efforts to get clearance of the crate.
6. The Petitioner has been working as a travel agent and has roots in Bombay. He is not likely to commit similar offence while on bail. Since there are some circumstances compatible with the Petitioner's innocence and it is unlikely that he would abscond, in my view, he may be granted bail. I am sure, the trial Court will not be influenced by the observations made by me in this Order, and decide the case on independent assessment of the evidence and according to law.
7. In the result, I allow the Application. The Petitioner be released on bail of Rs. 50,000/- with two solvent sureties of Rs. 25,000/- each. On release, the Petitioner shall report to the Customs Office once in every week till the commencement of the trial. The bail to be furnished in the trial Court which shall scrutinise the solvency of the sureties before accepting them as sureties.