Raja Jaswant Singh v. Narcotics Control Bureau

14. Two transactions, dated, 16th December 2020 and 29th November 2020 have been adverted to, to highlight petitioner’s active role, in the workings of Shrijan Group. Deposit slip dated 16th December 2020 (annexed to the complaint), bears petitioner’s mobile number, as well as, his signature as BAIL APPLN. 546/2024 5 of 20 ‘Sandhu’. Another deposit dated 29th November 2020, was made by the petitioner, in the account of Shrijan Group.

15. WhatsApp Chats and CDR records, between the petitioner and Sushila Sharma, have been procured to show the petitioner’s involvement in the working of Shrijan Group.

16. Data was extracted from the mobile phone recovered from accused Guldeep Singh, WhatsApp chats between the petitioner and Guldeep Singh have been discovered. CDR connectivity between the petitioner and Amardeep Singh Narang has also been ascertained. Submissions on behalf of the Petitioner

17. Counsel for the petitioner made the following submissions in support of grant of bail: i. As regards present case before this Court, as well as, other cases instituted by the NCB against the petitioner, no recovery has been effected from the petitioner in any of the said cases. Further, it is pertinent to note that in the present case, no recovery was made even at the behest of the petitioner basis his disclosure statement. ii. The petitioner was already under arrest in Crime No. VIII/DZU/28/2020, thus, the Respondent/ Bureau could easily have, a ‘Test Identification Parade’ (‘TIP’) conducted, as regards the petitioner. Instead, the Bureau proceeded to undertake a ‘Photo Identification’ of the petitioner, whereby, Guldeep Singh, positively identified the petitioner, on 4th February 2021. BAIL APPLN. 546/2024 6 of 20 iii. Reliance was placed on the decision of the Supreme Court in, D. Gopalakrishnan v. Sadanand Naik (2005) 1 SCC 85, to further the proposition that, investigating officers are not justified under law to show pictures in place of conducting a TIP. iv. There are no transcripts of the calls between the petitioner and the other co-accused. v. One Balwinder Kaur (Sister of Didar Singh), in her statement dated 26th July 2021, stated that tablets were collected by Charanjit Singh, from the parking lot of her building, and that they were kept there by Guldeep Singh. Thus, the petitioner was not present at any material place of incidence in the present case. vi. Charanjit Singh in his statement dated 3rd February 2021, stated that he does not know the petitioner. vii. The petitioner states that, the case set up by the prosecution is false, as the prosecution contends that Batch No. 081b/20 was seized from the DHL office on 30th January 2021, whereas, the said consignment was still in transit till 31st January 2021. And as per the tracking report, it was still in the territory of Gujarat. In this regard, reliance is placed upon the decision of a Division Bench of this Court in, Raja Jaswant Singh v. Union of India 2024 SCC OnLine Del 5467., particularly para 8 of the said judgment which is extracted hereunder: “8. Learned counsel for the Petitioner, apart from the above, submits that in NCB Crime No. VIII/03/DZU/2021, it is the case of the Sponsoring Authority that a letter dated 31st March, 2021 was sent to the Manager of ‘We Care Pharmaceuticals’, Gujarat, requesting to provide details in respect of Tramadol Capsules. It is pointed out that We Care through Email dated 2nd April, 2021 BAIL APPLN. 546/2024 7 of 20 informed that the said batch were sold to Vinayak Pharma and further, the full batch was sold to Shrijan Group by the said Vinayak Pharma. It is further submitted that the goods were dispatched from We Care Pharma 15th December, 2020 and were purchased by Vinayak Pharma on 15th December, 2020 in Gujrat. It is stated that the tablets were dispatched to Shrijan Group on 18th December, 2020 and were not received till 31st December,

2020. It is further submitted from the NCB's record, it is reflected that the consignment which is alleged to have been seized in the present case on 31st January, 2021 was in fact in transit as per the tracking report which forms part of the aforesaid record of NCB and was still in the State of Gujrat. It is submitted that in view of the aforesaid the Petitioner has been falsely implicated.” viii. The petitioner suggests the following timeline for the said consignment: Date Status 15th December 2020 Goods dispatched from We Care Pharma Goods purchased by Vinayak Pharma 18th December 2020 Goods dispatched to Shrijan Group Till 31st December 2020 Present in Kalol, Gujarat Reliance in this regard, is placed on the following materials: • GST invoice dated 15th December 2020, generated by We Care Pharmaceutical. • GST invoice dated 15th December 2020, generated by Vinayak Pharma. • E-Bill dated 18th December 2020, generated by Vinayak Pharma against Shrijan Group. BAIL APPLN. 546/2024 8 of 20 • Tracking report attached to the afore-mentioned E-bill, wherein the last entry is from 30th December 2020, 12:27 P.M. and the package is shown to be in Kalol, Gujarat. ix. The drug license of Shrijan Group was surrendered on 3rd January 2021, which further bolsters the contention that the goods were never received. x. Sushila Gupta, the sole proprietor of Shrijan Group, had control over the bank account and was the only signatory and any money received by the firm, could only be accessed by her. Further, she had applied for the drug license for the firm. xi. The following co-accused persons have been released on bail: Co-accused Details of grant of bail Guldeep Singh Order of this Court, dated 17th October 2023 in Bail Application No. 994/2023. Amardeep Singh Narang Order of the ASJ, Patiala House Court, dated 3rd August 2023. Charanjit Singh Granted bail by the Trial Court (Factum recorded in order dated 17th October 2023, passed by this Court in Bail Application No. 994/2023) x. The last call made between the petitioner and Amardeep Singh, dates back to 10th December 2020, whereas the goods were dispatched on 15th December 2020, in absence of a transcript, benefit of doubt must accrue to the petitioner. Said benefit was attached by the Trial Court to Amardeep Singh Narang, while granting him bail vide order dated BAIL APPLN. 546/2024 9 of 20 3rd August 2023. The relevant paragraph of the said order is extracted hereunder: “Recovery in the matter is of parcel on 30.01/2021. The last call between the accused/ applicant and accused Raja Jaswant is on 10.12.2020[2], there is no transcription of the alleged calls between the accused persons, therefore, it can not be said, at this stage, that the purpose of calls was only for drugs.” xi. As regards CDR connectivity, reliance is placed on the judgment of this Court in, Phundreimayun Yas Khan v. State (NCT of Delhi) xii. Petitioner has been in custody for over three years. Reliance is placed on the decision in Nitish Adhikari @ Bapan v. State of West Bengal, order dated 1st August 2022 in S.L.P. Crl. No. 5769/2022. xiii. The statement of Guldeep Singh is barred under Section 67 NDPS Act. Reliance in this regard is placed on Tofan Singh v. State of T.N. (2021) 4 SCC 1. Further, statements made by Anil Gambhir and Sarvesh Singh may not be incriminatory as they merely state that the petitioner helped Sushila Sharma, procure a drug license and rent the premises for Shrijan Group. Submissions on behalf of the NCB

18. Counsel appearing for the NCB made the following contentions in opposition to grant of bail: i. The seized tablets were duly identified by the petitioner. BAIL APPLN. 546/2024 10 of 20 ii. The owner of the shop (Shop No. 2 Ground Floor, B-15A, Uttam Nagar, Delhi) Anil Gambhir, identified the petitioner. iii. The statement of Sushila Sharma, proprietor of Shrijan Group, was adverted to, to contend that it was the petitioner who played the major role in running the firm. iv. Vinayak Pharma generated the invoice for the said consignment, against Shrijan Group, on 18th December 2020; the drug license for Shrijan Group was cancelled on 3rd January 2021, and thus, the purchase of the present consignment was made prior to the surrender of the license by Sushila Gupta. v. In his statement, Sarvesh Singh, who facilitated the procurement and surrender of license for the firm, admits that the petitioner was actively involved in procuring the drug license for Shrijan Group. Analysis

19. The seizure of the particular batch of the tramadol was traced back to We Care Pharmaceuticals and then to the agent, Vinayak Pharma, and the license for Shrijan Group, though in the name of Sushila Sharma, was as per the statements of Sushila Sharma and Sarvesh Singh, being misused as a convenient front by the petitioner for carrying out illegal trading in Tramadol tablets and other banned substances.

20. Sushila Sharma in her statement has provided a fair amount of detail in the manner by which she was persuaded by the petitioner to start a firm, procure a license and how the operations were completely managed by the petitioner. BAIL APPLN. 546/2024 11 of 20

21. The contentions on behalf of counsel for petitioner that he was implicated merely on the basis of disclosure statement which are otherwise inadmissible based on the principles based on the Tofan Singh (supra), do not appeal to this Court, particularly at this stage of examining whether the rigors Section 37 NDPS Act are overcome or not.

22. It is pertinent to note, that the petitioner has various antecedents under the NDPS Act, details of which, are as follows: Involvement Status Crime No. VIII/28/DZU/2021 (Seizure of 50,000 Tablets/ 20 Kgs Tramadol) Bail granted by Trial Court, vide order dated 9th December 2023 in light of non-compliance of Section 52A of the NDPS Act. Crime No. VIII(IO)/16/NCB/JZU/2020 (Seizure of 6,02,300 Tablets/ 314.62 Kgs Tramadol + 338 Bottles of Cough Syrups) Bail granted by Trial Court, vide order dated 19th September 2024, by the High Court of Rajasthan in S.B. Criminal Miscellaneous Bail Application No. 10422/2024 Preventive Detention Orders Dated: 29th November 2023/ F. No. U- 11011/47/2023-PITNDPS 19th February 2024/ F. No. U- 11012/28/2023-PITNDPS Set aside vide judgment dated 7th August 2024, passed by this Court in W.P. (CRL.) 1231/2024.

23. The Supreme Court and this Court, in various judgments, have held that past antecedents may invite the rigors of Section 37 upon an accused under the NDPS Act. In this regard, the Court finds it apposite to advert to the following decisions: BAIL APPLN. 546/2024 12 of 20 i. Satpal Singh v. State of Punjab (2018) 13 SCC 813:

ii. Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 (in the context of offences under MCOCA):

BAIL APPLN. 546/2024 13 of 20 offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. iii. Neeru Yadav v. State of U.P. (2016) 15 SCC 422: “15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner.” iv. Mahender Singh v. State (NCT of Delhi) 2024 SCC OnLine Del 6828:

BAIL APPLN. 546/2024 14 of 20 a recovery of huge quantity of Heroine as well as the money which is claimed to have been procured from sale of Drugs. For all the aforesaid reasons, the present case is not a fit case for grant of bail” v. Awadhesh Yadav v. State (NCT of Delhi) 2023 SCC OnLine Del 7732: “39. In “Rafiq v. State (Govt. of NCT of Delhi)” [Bail Appln. 3901/2020], a Coordinate Bench of this Court negated the contention of the petitioner therein that 555 gms of charas recovered from him is less than commercial quantity therefore, rigors of Section 37 of the Act would not be applicable. The Court observed that the petitioner was arrested alongwith his co accused who is involved in other two cases and no doubt the petitioner therein was carrying only intermediate quantity but his coaccused was carrying 955gms of contraband and further since they were travelling in the same vehicle, therefore, at the stage of considering the bail application it would not be proper to consider the alleged recovery to be an individual recovery. The Court also noticed that co-accused was a habitual offender and he knew the trick of the trade and the factum of conspiracy can only be looked into at the time when evidence is led.”

24. This Court, in Mehabub Rahaman v. State (NCT of Delhi) 2023 SCC OnLine Del 3488, held as under:

BAIL APPLN. 546/2024 15 of 20 various interceptions of phone conversations over a period of time, along with matching voice samples of Bajlur Rahaman, Abu Bakar, Saidul, and the petitioner, and the large recovery of 10.[5] kg of heroin, the source of which was finally traced out to the petitioner, as part of the investigation. Even though disclosure statements alone are not admissible, the existence of the conspiracy would have to be proved during the trial and it would be difficult in these circumstances to accord satisfaction that there are reasonable grounds to believe that he is not guilty of such an offence.”

25. The Supreme Court in, Union of India v. Rattan Mallik, (2009) 2 SCC 624, while elucidating that under Section 37 of the NDPS Act, the reasonable belief that the accused did not commit the offence is based upon such facts and circumstances which themselves ensure that the accused did not commit the offence, held that the mere factum that recovery was not affected from the accused, does not by itself, imply that the rigours of Section 37 will not be invited upon him. The following paragraphs of the said decision, are instructive in this regard:

BAIL APPLN. 546/2024 16 of 20

13. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798: (2007) 3 SCC (Cri) 505] ). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.

16. Merely because, according to the learned Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that “nothing has been found from his possession” by itself shows application of mind by the learned Judge tantamounting to “satisfaction” within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge.” BAIL APPLN. 546/2024 17 of 20

26. The Court has perused the judgment of the Division Bench of this Court in Raja Jaswant Singh (supra), which dealt with the challenge to the preventive detention orders. The facts of other cases against the petitioner are noted therein, as under: i. There are two other cases mentioned, registered against the petitioner, viz., NCB, Crime No. VIII /28 /DZU/ 2020, which involved seizure of 20 Kgs of tramadol tablets and NCB Jodhpur, Crime No, VIII/16/NCB/JZU/ 2020, which involved a seizure of 314.62 Kgs of tramadol tablets. ii. In the former, the seizure was traced to ‘Neutech Healthcare Pvt. Ltd.’, who stated that they had supplied it to ‘M/s Best Enterprises’, located at Tagore Garden, New Delhi. Proprietor of M/s Best Enterprises was one Ajay, who stated that all the businesses of the firm were managed and financed by the petitioner along with Amardeep Singh Narang and Hardeep Singh. Further, the shop owner, one Suman Minocha, who stated that petitioner and the others had met him, for taking the shop on rent, for the business of generic medicines and all financial transactions were done by them. The other related facts, which were all part of the complaint and investigation, pointed out that the drug license and the medicine shop was being used as a front by the petitioner and other co-accused. iii. In the latter case of Jodhpur, the seizure was made from a vehicle, which was finally traced back to the petitioner, Amardeep Singh Narang and other co-accused, who were allegedly involved in the BAIL APPLN. 546/2024 18 of 20 illegal diversion of narcotic medicines through Best Enterprises and procured from Neutech Healthcare Pvt. Ltd.

27. Having regard to these other cases in which the petitioner has been implicated, this Court notes that prima facie it seems that the petitioner is adopting the same modus operandi in order to illegally divert psychotropic substances through various entities, establishments and licenses, procured at his behest through other unsuspecting individuals.

28. The plea of delay in trial and prolonged incarceration, though being recognized by the Supreme Court as an inalienable right under Article 21 of the Constitution of India cannot have a formulaic application. The Supreme Court has elucidated upon the issue of delay in trial in various decisions, inter alia in Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109, Dheeraj Kumar Shukla v. State of U.P. 2023 SCC OnLine SC 918, Man Mandal v. State of West Bengal, 2023 SCC OnLine SC 1868, Badsha Sk. v. State of West Bengal 2023 SCC OnLine SC 1867.

29. Assessment of these decisions of the Supreme Court cited above shows that bail has been granted in cases having differing facts, some with incarceration of more than 3 years, and some in cases of seizure of ganja. The assessment, therefore, on prolonged custody and delay in trial will depend of facts and circumstances of the case. Whether 2 or 3 years or more, or any other time period is “prolonged”, is clearly left to the assessment of the Court.

30. In this case, the petitioner has undergone about 3 years of custody and the trial is progressing. An attempt may be made by the Trial Court to expedite the trial. In the event, that the trial does not proceed ahead expeditiously, BAIL APPLN. 546/2024 19 of 20 needless to state that the applicant will have the right to approach the Court at a subsequent stage.

31. In the context that petitioner has been in custody for a period of 3 years the decision of the Supreme Court in, Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731, the Supreme Court, in the context of incarceration as an undertrial and delay in disposal of cases, stated inter alia that, when an undertrial is charged with offences with minimum imprisonment of 10 years, and if they have been in jail for not less than 5 years, they may be released on bail upon furnishing bail bond in the sum of Rupees 1,00,000/- with two sureties for like amount.

32. The reliance placed on the Division Bench judgment in Raja Jaswant Singh (supra), to bolster the contention that the consignment was in Gujarat till 31st January 2021, may not come to the aid of the petitioner. The relevant paragraph on which the petitioner’s counsel relies upon [extracted in 17 para (vii)] is noted by the Division Bench, as submissions of counsel and not a finding or a conclusion.

33. The alleged discrepancies in the location of the parcel and the details of the CDR, are a matter of trial, and cannot be relied upon, at the stage of grant of bail. Even if the petitioner’s objections to the investigation are ex facie taken to be true, the said material, solely, may not enable the petitioner to satisfy the mandate under Section 37 of the NDPS Act, especially in light of his past antecedents.

34. Though, these are only prima facie assessments, it does not allow the Court, to reach the satisfaction that there are reasonable grounds for believing BAIL APPLN. 546/2024 20 of 20 that he is not guilty and more importantly that he is not likely to commit any offence while on bail.

35. The rigors of Section 37 NDPS Act, therefore, are not overcome by the petitioner, in the facts of this case, since the possibility that the petitioner, would be likely to commit a crime, while on bail, cannot be ruled out.

36. The seizures are of a commercial quantity and the supply has been finally traced back to the operations, which were run by the petitioner.

37. It is also noted that quashing of the preventive detention orders by the Division Bench of this Court, was based on technical grounds and the Division Bench had not adverted to the merits of the various cases, which have been registered against the petitioner.

38. Needless to say, the observations made by this Court, are for the purposes of assessment of the bail petition and particularly for testing it on grounds of Section 37 NDPS, the same will not have any reflection, on the merits of the matter.

39. In the aforesaid facts and circumstances, considering the nature of the contraband recovered, the criminal record of the petitioner, and the nature of the conspiracy, bail cannot be granted to the petitioner.

40. Accordingly, petition is dismissed. Pending applications (if any) are rendered infructuous.

41. Judgment be uploaded on the website of this Court.

JUDGE DECEMBER 16, 2024/RK/kp