Full Text
HIGH COURT OF DELHI
JUDGMENT
RAVI ZHINGA .....Applicant
For the Applicant : Mr. Nishant Singh, Advocate
For the Respondent : Mr. Arun Khatri, Sr.Standing Counsel with
Ms. Shelly Dixit, Ms. Shreya Lamba, Ms. Anoshuka, Mr. Sahil &Mr. Akshay, Advocates
1. The present bail application is filed seeking regular bail in Case No. VIII/24/DZU/23, registered for offences under Sections 8 (c), 20 (b), 22(c), 23(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).
2. The brief facts of the case are as follows:
2.1. On 29.05.2023, a secret information was received that one person, namely, Gajender Singh, will come for booking a parcel containing narcotic drugs at DTDC Courier. On the basis of the said information, accused Gajender was intercepted by the raiding team when he arrived at the DTDC Office. It is alleged that accused Gajender was carrying a light green envelop. A recovery of 15 LSD paper blots, weighing 0.[3] g, was effectuated from the said envelop. It is alleged that at the instance of accused Gajender, a recovery of 650 LDS Blots was made from his home as well.
2.2. It is alleged that the accused Gajender admitted his complicity in the offence in his statement under Section 67 of the NDPS Act. He further disclosed that he used to book parcels on the directions of coaccused Shainu. Thereafter, co-accused Shainu disclosed that she had purchased the LSD Blots from her friend– Sarabjeet Singh and gave his details.
2.3. A search was conducted at the disclosed address of co-accused Sarabjeet Singh in Jaipur and a recovery of 9006 LSD Blots and 1.116 Kg of Ganja along with ₹4,65,500/- was made from there.
2.4. It is alleged that co-accused Sarabjeet disclosed about a few other consignments in his disclosure statement.
2.5. One such consignment bearing no. W60822411 had been delivered to one Manthan Raina in Noida. During search of the address in Noida, a recovery of a total of 84 LSD Blots was made from there.
2.6. Co-accused Manthan in his statement under Section 67 of the NDPS act disclosed the name of the applicant. He stated that that the parcel was ordered by one Yuvanshu, who knew many dealers on darknet and wickr. He further stated that the applicant, who was his friend, had paid ₹30,000/- to Yuvanshu for procuring the concerned parcel and it was the applicant who had shared his address and mobile number with Yuvanshu. He further stated that the applicant had sent the tracking number of the parcel to him. It is alleged that the applicant admitted to his complicity in the crime in his disclosure statement.
2.7. During follow up action in relation to other parcels (the details of which had been disclosed by co-accused Sarabjeet), the following recoveries were affected: a. Parcel no. RR673997169L: Intercepted at Post Office Mahasainik, Pune and a recovery of 5006 LSD Blots was made from the parcel. b. Parcel No. W60803432: Intercepted at the DTDC courier Service, Kerala and a recovery of 100 LSD Blots was made from the parcel. Further, co-accused Saneesh Soman was apprehended when he came to collect the said parcel. c. Parcel No. W60803434: Intercepted at the DTDC Express Ltd., Aminjikarai, Chennai, and a recovery of 100 LSD Blots was made from the parcel.
3. The learned counsel for the applicant submitted that the applicant is innocent and he has been falsely implicated on the basis of the disclosure statement of co-accused Manthan and no recovery has been effectuated from him.
4. He further submitted that co-accused Manthan and the applicant have retracted their disclosure statements. He submitted that the disclosure statements cannot be used against the applicant in view of the judgment passed by the Hon’ble Apex Court in Tofan Singh v. State of Tamil Nadu: (2021) 4 SCC 1.
5. He submitted that there is no money trail or incriminating evidence which links the applicant to the present offence and the rigours of Section 37 of the NDPS Act are not attracted against him.
6. He submitted that the recovery in questions involves 1.[4] grams of Blots, which is alleged to contain LSD drops. He submitted that without FSL report, it cannot be conclusively established that the blotter paper contains LSD drops or the precise quantity of recovered substance. He submitted that there is thus no clarity as to whether the recovered contraband is of small, intermediate or commercial quantity, and in such circumstances, treating the alleged recovery to be one of commercial quantity will prejudice the applicant.
7. He further submitted that while the prosecution alleges that chats were recovered from a device purportedly belonging to the applicant, however, as per the Certificate under Section 65B of the Indian Evidence Act, 1872, the device in question is not registered in the name of the applicant.
8. He relied upon the judgment of the Hon’ble Apex Court in the case of Bharat Chaudhary v. Union of India: (2021) 20 SCC 50 where it was held that printouts of WhatsApp chats, in absence of corroborative evidence, cannot be treated as sufficient material to establish a live link.
9. He submitted that the applicant was arrested on 31.05.2023 and the charges are yet to be framed in the present case. He submitted that there are thirty-nine witnesses and the trial is likely to take long.
10. Per contra, the learned Senior Standing Counsel for the respondent vehemently opposed the grant of bail to the applicant and submitted that the present case involves recovery of commercial quantity of contraband and therefore the rigours of Section 37 of the NDPS Act are attracted against the applicant.
11. He submitted that the applicant is actively involved in the commission of the offence and there is no evidence on record to show that there are reasonable grounds for believing that the applicant is not guilty of the alleged offence.
12. He submitted that the combined weight of the blotter paper, which is a neutral substance, and LSD is relevant to determine small or commercial quantities. He relied upon the judgments in the cases of NCB v. Anuj Keshwani: Criminal WP No. 2077/2021 (Bombay High Court),Nihaal. S v. State by Inspector of Customs: Criminal Petition No. 8285/2022 (Karnataka High Court), Rajesh Ravindran v. Union of India: AIRONLINE 2021 Kar 1832 (Karnataka High Court) and HS Arun v. State of Goa: 2022 SCC OnLine Bom 4696 (Bombay High Court) in this regard.
13. He submitted that there are various chats in regard to the contraband and their prices and photographs of the present applicant with the co-accused Yuvanshu.
14. He submitted that the applicant had shared picture of LSD Blots along with tracking number of parcel with co-accused Manthan. He submitted that co-accused Yuvanshu, who used to place orders on Dark-Web, and further send the details to the applicant is absconding.
15. He submitted that there are chats between co-accused Yuvanshu and the applicant as well where they are discussing about Zambarda Cartel and huge quantity of LSD Blots.
ANALYSIS
16. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc. At the same time, the period of incarceration is also a relevant factor that is to be considered.
17. It is unequivocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfil the conditions stipulated in Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under:
18. In the present case, it is essentially argued that the applicant has been falsely implicated in the present case. It is argued that the applicant has essentially been implicated at this stage on the basis of the disclosure of co-accused and certain purported chats between the applicant and co-accused Manthan. It is further argued that the weight of the blotter paper cannot be included while determining the recovered quantity and in absence of FSL report, it cannot be stated that the recovered quantity is commercial in nature as the exact quantity of contraband has not been determined.
19. It is the case of the prosecution that the co-accused Sarabjeet disclosed the details of a few consignments, out of which, one consignment had been sent to co-accused Manthan at his address in Noida. On search of the said address, a recovery of 84 LSD Blots was effected. Co-accused Manthan named the applicant in his disclosure statement and stated that the applicant had helped procure the parcel by paying ₹30,000/-.
20. It is relevant to note that while the veracity of the disclosure statement of the co-accused is to be tested at the time of the trial, this Court cannot lose sight of the decision of the Hon’ble Supreme Court in Tofan Singh v. State of Tamil Nadu (supra), wherein it was held that a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence without corroboration. The relevant paragraphs of the said judgment is set out below:-
taken into account in order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” (emphasis supplied)
21. The prosecution has alleged that certain chats have also been found between the applicant and co-accused Manthan in relation to the concerned parcel which corroborate the disclosure of co-accused Manthan.
22. It is argued that as per the certificate under Section 65B of the Indian Evidence Act, 1872, the device in question is not registered in the name of the applicant. Whether the applicant is involved in the commission of the offences and the veracity of the disclosure statements will only be tested after evidence has been led by the parties. However, at this stage, it cannot be ignored that no recovery has been effected from the applicant. This Court does not deem it appropriate to comment further on the said aspect at this stage.
23. As far as the inclusion of weight of blotter paper in the recovered quantity, the learned SSC has referred to certain judgments where it has been held that the blotter paper weight is to be included in recovered quantity.
24. The Division Bench of the Hon’ble Bombay High Court in the case of H.S. Arun Kumar v. State of Goa: 2022 SCC OnLine Bom 4696, while placing reliance on the judgment in the case of Hira Singh v. Union of India:(2020) 20 SCC 272, has held that the weight of the blotter paper is to be included while calculating the weight of the contraband. The Division Bench also referred to a catena of precedents from the United States of America as well as Australia to observe that the blotter paper is made of material that is edible and is an integral part of the mixture as the same is ingested with LSD. It was further observed that the objective of the NDPS Act seems to be to include not just the pure drug but also the blotter to quantify the quantity of the recovered substance. The relevant portion of the said judgment is reproduced hereunder:
instances or examples raised in the abstract cannot govern statutory interpretation in all cases. Nevertheless, the review of precedents, Nationally and internationally, establish that the combined weight of the blotter and the L.S.D. is crucial to the quantification upon which the punishment depends. xxx
59. Section 2(xxiii) defines “psychotropic substance” means any substance, namely natural or synthetic or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. Thus, a psychotropic substance includes a preparation thereof. Alternatively, the preparation of psychotropic substances is also covered under the definition of psychotropic substance. xxx
64. There is an express indication in the NDPS Act about taking into account the entire quantity of the drug or the psychotropic substance seized in a case for determining the quantum of punishment and not just the pure drug content alone…
65. The statutory provisions and the scheme of the NDPS Act referred to above clearly provide, in more places than one, that the weight of the entire mixture and not just its pure drug content must be taken into account for determining whether the quantity is small, intermediate quantity or a commercial quantity. Moreover, the statement of object and reasons for introducing the amendment to the NDPS Act in 2014 explicitly clarifies the legislative intent to take the entire quantity of drug seized in a case for determining the quantum of punishment and not just the pure drug content.
66. ….Ultimately, E. Michael Raj (supra) was overruled by Hira Singh (supra). Hira Singh (supra) held that the legal position before E. Michael Raj (supra) that the entire quantity of the drug seized would be relevant to determine the quantum of punishment and not just the pure drug content. Thus, considering the legislative intervention after E. Michael Raj (supra) and the judicial overruling of E. Michael Raj (supra) by Hira Singh (supra), any argument that only the weight of pure L.S.D. is relevant to determining the quantum of punishment, would not not sustain.
67. In the context of the definition of “preparation” in Section 2(xx), the expression “mixture, in whatever physical state” cannot be ignored. This expression would include a mixture of L.S.D. and blotter. Ultimately, there is no dispute that the L.S.D. dissolved in a solution like alcohol is dropped on the blotter. The mixture of L.S.D. on the blotter is then ingested. Therefore, the expression “in whatever physical state” cannot be ignored or rendered meaningless or redundant. The fact that the Legislature chose to use this expression expressly will have to be respected and given some meaning.
68. Similar is the position of the statutory provisions referred to above or the statutory Notification issued under the NDPS Act. The suitable meaning having regard to the context, will have to be assigned to expressions like “mixture or substance” and “containing one or more such drugs or substances”. The expression “one or more” cannot be read or construed as “two or more”. In the statutory Notification dated 19.10.2001, the expression in Entry 239 of the Table concerning “any mixture or preparation that of with or without a neutral material” must be considered and respected. Similarly, in note 4, a reference to “entire mixture” and “not just its pure drug content” must be considered and respected. If the interpretation or construction suggested by the learned Counsel for the accused persons is accepted, most of these expressions used by the Legislature or the Executive in the statutory Notification would be rendered otiose or meaningless. xxx
74. The precedents on the subject also overwhelmingly support the inclusion of the weight of the blotter and not just the weight of the pure L.S.D.… xxx
86. Most decisions or the material referred to also speak about the blotter being made up of extra absorbent material, including ingredients like rice, cotton, and flax seeds. Such blotters absorb L.S.D. in their tiny perforations, separable only on dipping it into a liquid or placing it on the tongue. The blotter becomes an integral part of the mixture of the L.S.D.-impregnated blotter. Moreover, blotters made up of rice, flax seeds etc., are consumable. They qualify as neutral substances in ordinary parlance, just as chalk or talcum powder would, in the context of the drugs with which they are mixed. The ruling in Hira Singh (supra) is quite clear on the status of such neutral substances. The NDPS Act also refers to psychotropic substances, including preparations of one or more psychotropic substances. Preparation includes a mixture in whatever state.
87. Thus, the text, precedents and the literature on the market or street practices in which L.S.D. is stored, transported, concealed, sold, purchased, consumed or otherwise dealt with support the discussion and construction in Anuj Keshwani (supra). xxx
94. Note 4 below Notification dated 19.10.2001 as introduced by Notification dated 18.11.2009 very clearly provides that quantities shown in Columns 5 & 6 of the Table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts or esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.
95. Thus, this Note clearly expresses that the weight of the entire mixture is relevant, not just the pure drug content in such mixture. The Legislature is presumed to be aware of the market or street conditions in which psychotropic substance like L.S.D. is dealt with on the streets and in the markets. The accused persons have not challenged any provisions of the NDPS Act or Note 4 below the Notification dated 19.10.2001. In any case, the validity of these provisions has already been upheld in Hira Singh (supra). Therefore, any reference to this Note could not have been avoided by opining that L.S.D. drops on a blotter do not constitute a mixture or that a blotter is not a neutral substance.
96. Incidentally, Hira Singh (supra), in paragraph 11, holds that Note 4 below Notification dated 19.10.2001 was clarificatory and added by way of abundant caution only. Even absent the Note, the Court concluded that while determining the small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substance(s), it includes the weight of the neutral substance(s) also and not only the actual content by weight of the offending drug has to be taken into account. The Court held that theretofore even if Note 4, which was added by Notification dated 18.11.2009, were not to be added, the legal position would favour taking into consideration the combined weight of the offending drug and the neutral substance with which it is mixed.
97. Thus, according to us, Hira Singh (supra) is a complete answer to most of the contentions raised by Mr. Merchant, Ms. Collasso and Mr. Poulekar on behalf of the accused persons. Based upon Hira Singh (supra), therefore, their contentions cannot be accepted by us. xxx
99. In fact, the Statutory scheme and provisions of the NDPS Act are pretty clear and clearly reflect the legislative intent on the subject. They are comparable, at least when it comes to the essentials. There is no doubt, however, that the precedents from the United States or Australia do not bind the Courts in India…such precedents are certainly not irrelevant. Even though they may not be binding, they have a persuasive value. xxx
115. In conclusion, therefore, we endorse the view taken in Anuj Keshwani (supra) that the combined weight of the L.S.D. and the blotter is relevant to determine small or commercial quantities and not the view in Hitesh Malhotra (supra) and Harsh Meshram (supra) that only the weight of the pure L.S.D. is the determinative factor. The reference is answered accordingly.”
25. The said view has been subsequently adopted by a number of different Courts as well. This Court does not consider it apposite to comment on the issue as raised by the applicant at this stage considering the ambit of the present proceedings, especially given the view taken by the Hon’ble Division Bench. The Court at present is not discussing the interpretation of the small quantity so stipulated and is seized with merely the question of bail.
26. It also cannot be ignored that the present case is one where the applicant was arrested on 31.05.2023, despite which, the charges have not been framed (as on the date when the matter was reserved for judgment). Thirty-nine witnesses have been listed by the prosecution. In such circumstances, speedy trial does not seem to be a possibility. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time.
27. It is trite law that grant of bail on account of delay in trial and long period of incarceration cannot be said to be fettered by the embargo under Section 37 of the NDPS Act. The Hon’ble Apex Court, in the case of Mohd. Muslim v. State (NCT of Delhi):2023 SCC OnLine SC 352 has observed as under: “21….Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.
22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State21 as “a radical transformation” whereby the prisoner: “loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Selfperception changes.”
24. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer's ‘The Prison Community’ published in 194023 ). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”
28. The Hon’ble Apex Court in the case of Man Mandal & Anr. v. The State of West Bengal: SLP(CRL.) No. 8656/2023 had granted bail to the petitioner therein, in an FIR for offences under the NDPS Act, on the ground that the accused had been incarcerated for a period of almost two years and the trial was likely going to take considerable amount of time.
29. The Hon’ble Apex Court in Rabi Prakash v. State of Odisha: 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein held as under: “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”
30. From the foregoing, it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the ground of undue delay in the completion of the trial.
31. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guarantee under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedence over the statutory restrictions under Section 37 of the NDPS Act.
32. The evidence, at this stage, which implicates the applicant is the disclosure statement of co-accused and certain chats allegedly exchanged between the applicant and co-accused. The applicant has denied that the instrument from which chats were shown to have been exchanged with the co-accused belongs to him. It is pointed out that the certificate under Section 65B of the Indian Evidence Act, 1872 indicates that the instrument belongs to some other person. It is alleged that a sum of ₹30,000/- was paid by the applicant to Yuvanshu to procure the contraband. However, at this stage, no money trail has been investigated and the same remains only a disclosure of coaccused at the moment. At this stage, it cannot be ignored that the applicant has spent substantial time in custody and the trial has still not started.
33. The applicant is stated to be of clean antecedents. This Court is thus satisfied that the applicant, if released on bail, will not indulge in similar offence.
34. In view of the aforesaid discussion, this Court is of the opinion that the applicant has made out a prima facie case for grant of bail.
35. The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹50,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever; b. The applicant shall under no circumstance leave the boundaries of the country without the permission of the Trial Court; c. The applicant shall appear before the learned Trial Court as and when directed; d. The applicant shall, after his release, appear before the concerned IO once in every week; e. The applicant shall provide the address where he would be residing after his release to the concerned IO and shall not change the address without informing the concerned IO; f. The applicant shall, upon his release, give his mobile number to the concerned IO and shall keep his mobile phone switched on at all times.
36. In the event of there being any FIR/DD entry / complaint lodged against the applicant, it would be open to the respondent to seek redressal by filing an application seeking cancellation of bail.
37. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
38. The bail application is allowed in the aforementioned terms. AMIT MAHAJAN, J APRIL 01, 2025