Full Text
HIGH COURT OF DELHI
Date of order: 13th November, 2024
RISHABH TANDON .....Petitioner
Through: Mr. Pawan Kumar Nadia, Ms. Suman Saharan, Mr. Meghna Mehla and Mr. Dheriya Sejwal, Advocates
Through: Mr. Subhash Bansal, Senior Standing Counsel for NCB
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant bail application has been filed on behalf of the applicant under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter “CrPC”) (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita,
2023) seeking regular bail in complaint case no. VIII/42/DZU/21 registered under Sections 22(c)/23(c)/29 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter “NDPS”) at Police Station –Narcotics Control Bureau (hereinafter “NCB”).
2. As per the prosecution, on 26th July, 2021, secret information was received by Sh. JP Singh, Investigating Officer, NCB-DZU that a parcel bearing no. 8007134192 containing narcotics and psychotropic substance destined to United States is lying at DHL Express Pvt. Ltd.
3. Thereafter, the information was reduced into typing and was put before Assistant Director, NCB- DZU who marked the same with the direction to take necessary actions as per the law under the NDPS Act. The raiding team was constituted and they, along with the field-testing kit and all the requisite items required for search and seizure proceedings, reached DHL Express Pvt. Ltd., 71/3 Rama Road, Near Kirti Nagar, New Delhi at about 16.05 Hrs.
4. It is stated that the raiding team met one of the employees of the aforesaid courier company and after disclosing their identity, one Mr. Mustafa Raza agreed to become an independent witness. Thereafter, the suspected parcel with way Bill bearing No. 8007134192 was brought before the NCB team and the parcel was examined. The parcel was in the form of Khaki Cardboard box on which the details in the form of an invoice and way Bill were pasted.
5. Thereafter, the parcel was opened and upon opening the said carton box, six cylindrical shaped rolls of golden coloured laces were recovered. Upon removing the golden-coloured lace, a cotton thread was seen, on further removing it, strips of Tramadol Tablets were found concealed in it under which the plastic frame of roll was found. Similarly on checking the remaining rolls, same sort of packing was found in which Tramadol Tablets were concealed in similar fashion. The details of the quality and quantity are – Total 595 x 10 = 5950; Name of tablet – NRx Tramadol Hydocholride Tablets “OL – TRAM” (00 mg) manufactured by HAB Pharmaceuticals and Research Limited.
6. The weight of the 10 tablets was taken, it was found to be 3.[5] Grams. By assumption and calculation there were 595 strips in total and there will be a total of 5950 tablets. Total weight of 5950 tablets came out to be 2.083 Kgs. The raiding team de-stripped the tablets and the emptied the same in a small pouch along with the remaining 594 strips were then put into a transparent polythene packet and its mouth was tied with the help of a plastic sutli. The seizure report dated 27th July, 2021 was prepared and thereafter, the seizure was sent to Malkhana.
7. The proceeding under Section 52A of the NDPS was compiled by the Investigating Officer (hereinafter “IO”) for drawing of samples from the seized case property on 18th August, 2021 before the learned Reliever Metropolitan Magistrate for sampling of the recovered contraband having 595 strips bearing batch no 964-09, that is, 5950 tablets in total. Two samples, marked as Mark A & A[2], of one strip of 10 tablets each were drawn by the IO. During the investigation, the prosecution issued a notice under Section 67 of the NDPS to Mr. Rajesh Gupta on 25th August, 2021 and his statement was recorded on dated 1st September, 2021.
8. On 2nd September, 2022, the applicant herein (accused) was intercepted at Lucknow and his statement under Section 67 of the NDPS was recorded. It is stated that the applicant tendered his statement voluntarily wherein he disclosed that he received the aforesaid parcel from Mr. Shadab Khan (co-accused) and booked the same. He also disclosed other incriminating facts and allegedly admitted his involvement with the applicant herein in the commission of present crime.
9. In furtherance of the investigations and information disclosed by the applicant, Mr. Shadab Khan was also intercepted at Lucknow on 2nd September, 2022 and in pursuance of the notice under Section 67 of the NDPS, Mr. Shadab Khan tendered his voluntary statement wherein he admitted his involvement with the applicant herein and one Mr. Sharik Khan pursuant to which the applicant herein and co-accused Mr. Shadab Khan were arrested.
10. During the investigation, notices under Section 67 of the NDPS were issued in the name of Mr. Sharik Khan but he did not join the investigation and the learned Trial Court issued proclamation order under Section 82 of the CrPC. Thereafter, on 27th February, 2023, the present complaint was registered by the NCB. Following the same, charges were framed against the accused vide order dated 18th May, 2023 under Sections 22(c), 23(c) and 29 of the NDPS.
11. Consequently, the applicant approached the Court concerned seeking regular bail which was dismissed vide order dated 9th April, 2024. Hence, the present petition.
12. Learned counsel appearing on behalf of the applicant submitted that there has been no recovery from the applicant of any contraband and thus, the allegations filed against the applicant are misconceived and baseless.
13. It is submitted that there is not any material on record to prove that the applicant was in conscious possession of any of the said contraband and the investigating agency has failed to establish any link of the applicant with the recovered contraband.
14. It is submitted that the applicant had given the parcel in the name of one M/s Pankaj Sood India Pvt. Ltd. which are the sample thread of one Mr. Pankaj Sood. However, the parcel recovered by the investigating agency has different name and details.
15. It is submitted that the name of the applicant came after the statement of Mr. Rajesh Gupta wherein he stated that the applicant approached him to send a parcel to the USA and provided cash to the sum of Rs. 7,000/-. It is submitted that the applicant gave the parcel to one employee of Mr. Rajesh Gupta for sending the parcel along with the money and documents, and the applicant has no knowledge as to what was done with the parcel.
16. It is submitted that no reasonable explanation for delay of application for sampling before the Magistrate has been given by the respondent. The sample of 10 tablets was taken and was put together with all the strips in transparent polythene. Later on, after around 23 days from the date of collection of last samples, i.e., on 26th July, 2021, the application for sampling under section 52A of the NDPS was presented before the Court concerned on 18th August, 2021. It is trite law laid down in Union of India v. Mohanlal, (2016) 3 SCC 379 that the application to the Magistrate for sampling has to be moved immediately after seizure.
17. Therefore, in view of the foregoing submissions, it is prayed that the applicant may be released on bail.
18. Per Contra, the learned senior standing counsel appearing on behalf of the NCB vehemently opposed the instant application submitting to the effect that the same may be dismissed being devoid of any merits.
19. It is submitted that in the present case, commercial quantity of drugs/contraband has been seized and the present applicant was involved in the illicit trafficking of the narcotics medicines, and in illegal diversion of the contraband in huge quantity, and actively involved in the commission of the crime covered under the NDPS and hence, there is a bar of Section 37 of the NDPS.
20. It is submitted that the statutory presumption under Sections 35 and 54 of the NDPS is against the accused. Furthermore, it has been held in a catena of judgment that whether any prejudice has been caused by the sampling procedure, it can only be established during the trial before the Court concerned, who, after consideration of evidence can only determine the same.
21. It is submitted that mere delay in compliance of the sampling and seizure procedure cannot be a ground for grant of bail. The applicant herein has to show the prejudice caused on account of the non-compliance of Section 52A of the NDPS and in the present case, the applicant has failed to show or even give a whisper of any prejudice being caused to him due to the delay in complying Section 52A of the NDPS.
22. Therefore, in view of the foregoing submissions, it is prayed that the instant application may be dismissed.
23. Heard learned counsel appearing on behalf of the parties and perused the material placed on record.
24. The crux of the applicant‟s contention is that he was not in conscious possession of the narcotics in question and no prima facie case is made out against him. There is non-compliance of Section 52A of the NDPS which prescribes for procedure and disposal of seized narcotic drugs and psychotropic substances. It has been further contended that the applicant has been in judicial custody since 2nd September, 2022 and he may be released on bail as he will not violate the terms of the bail imposed upon him.
25. In rival submissions, learned senior standing counsel has vehemently opposed the present application on the ground that mere assertion of delay in compliance of Section 52A of the NDPS cannot be a ground for bail as held by the Hon‟ble Supreme Court and this Court in a catena of judgments.
26. Insofar the law qua the assertion of „conscious possession‟ is concerned, it is to be noted that the same is a question of fact which is to be determined on the basis of peculiar factual situation of each case. The same was also observed by the Hon‟ble Supreme Court in Madan Lal v. State of
Court that once possession is established, burden is on the accused to prove that it was not a conscious possession. Relevant paragraphs of the same are as under: “..19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformally applicable to all situations in the context of all statutes.
23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
25. The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966: (1976) 2 WLR 361 (QBD)].)..”
27. In the present case, the learned counsel for the applicant has submitted that the applicant was oblivious to the content of the package while it was in his possession and such a circumstance dehors the definition of “conscious possession”.
28. Upon perusal of the material placed on record including the Status Report, it is observed by this Court that during the investigation, it was unearthed by the investigating agency that from the mobile phone of the coaccused Mr. Shadab Khan, the tracking ID of the parcel in question, as well as documents belonging to the accused Mr. Sharik Khan, were recovered, and then the parcel in question was handed over to the present applicant.
29. Furthermore, during investigation, it was found by the investigating agency that there is a call detail record between the applicant, Mr. Shadab Khan, and Mr. Sharik Khan. Additionally, location of both the individuals, i.e., Mr. Shadab Khan and the applicant can be traced near the booking center at the relevant time. Also, the Aadhar card and Pan card attached to the parcel in question, belonging to one Mr. Mohd. Jafar, have been found to be invalid as well.
30. This Court is of the view that under Section 35 of the NDPS, the legislature has stated that there is a presumption of “conscious possession” when an individual is found in possession of prohibited substances and the burden of proof to negate the said presumption lies with the accused.
31. In the instant case, the quantity recovered from the applicant is 2.083 KG which is a “commercial quantity” under the Act, which significantly increases the gravity of the offense and further strengthens the presumption against the applicant.
32. Therefore, from the facts and circumstances arising from the complaint filed by the NCB, it appears that the applicant had the knowledge of the contents of the parcel in question and thus, was in conscious possession of the parcel in question. Moreover, although the applicant has questioned the „conscious possession‟ of contraband recovered, he has failed to bring on record any submission to prove otherwise, and thus, this Court does not find any merit in the assertion that the applicant was not in a conscious possession to grant him bail.
33. Moving further, the applicant has contended that the respondent failed to comply with the mandate of Section 52A of the NDPC which prescribed for a particular timeline and procedure to be followed for the disposal of the narcotics recovered and thus, the same is a ground for grant of bail.
34. With regard to the above, this Court is of the considered view that merely asserting that the there is a delay and no proper procedure was followed by the investigating agency, it cannot be a cogent ground for grant of bail as the same is merely a technical ground and in order to seek bail, the applicant must show as to how the lapse in following the provisions of Section 52A of the NDPS has caused any prejudice to him. This ground coupled with other factors may be taken into consideration to grant bail, however, embargo under Section 37 of the NDPS has to be borne in mind.
35. It is also noteworthy that, firstly non-compliance of Section 52 of the NDPS, in itself, cannot render the actions of the investigating officer null and void and secondly, whether non-compliance of rules, in cases involving commercial quantity, could be a ground for grant of bail, will have to be examined considering the nature of violation of such standing procedure and consequences thereof. This Court finds support in M. Prabhulal vs. Assistant Director, (2003) 8 SCC 449, wherein, the Hon‟ble Supreme Court declined to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.
36. The offense in question involves the alleged possession and trafficking of a "commercial quantity" of narcotics, specifically 2.083 kg of Tramadol tablets. The NDPS treats offenses involving commercial quantities with utmost severity due to their grave implications for public safety and societal well-being. Drug trafficking endangers communities and promotes addiction and social decay, particularly affecting vulnerable populations.
37. In the instant case, a huge commercial quantity of prohibited narcotics has been recovered and as the chargesheet has already been filed, the said ground may be taken before the learned Court concerned. However, in light of the facts of the instant case, the same cannot be dealt with as a ground to seek bail as mere non-compliance of Section 52A of the NDPS does not vitiate the trial. The said view was also taken by a Co-ordinate Bench of this Court in Arvind Yadav v. Govt. (NCT of Delhi), 2021 SCC OnLine Del
3619. Therefore, keeping in mind the above discussions, this Court does not find any merit in the instant contention.
38. Summarily stated, it is pertinent to note that the quantity of psychotropic substance recovered in the present case constitutes as commercial quantity and the non-compliance with Section 52A of the NDPS Act does not vitiate the proceedings at the trial stage. Alleged noncompliance or procedural lapses under Section 52A cannot serve as basis for granting bail, as these issues are matters for consideration during the trial or after its conclusion.
39. The NDPS is a specialized law with stringent provisions for the handling, control, and punishment of drug-related offenses. This Act operates on a principle of deterrence, and Section 37 of the said Act specifically lays down rigorous conditions for granting bail in drug-related offenses and the burden to satisfy these conditions lies on the accused, given the grave threat that narcotic offenses pose to society at large.
40. Therefore, it is pertinent to mention that in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100, the Hon‟ble Supreme Court observed that bail may be cancelled if it was granted without following the requirements specified under Section 37 of the NDPS Act.
41. Under Section 37 of the NDPS, an accused in a commercial quantity case is only entitled to bail if there are „reasonable grounds to believe‟ that they are not guilty of the offense and are unlikely to commit any offense upon release.
42. Based on the facts presented, this Court finds that the applicant has not met this threshold. The first bail dismissal order dated 9th April, 2024 records that the present accused was prima facie in regular contact with other co-accused.
43. There is a substantial risk that the applicant, if released, may continue engaging in similar illicit activities or may attempt to interfere with witnesses or the investigation process, considering the organized nature of narcotic offenses.
44. Further, as per the material on record, the learned Trial Court has issued proclamation order under Section 82 of the CrPC against one of the co-accused namely Mr. Sharik Khan, therefore, there is an apprehension of flight risk against the instant applicant as well.
45. Moreover, the applicant‟s suspicious conduct, including the formatting of his phone, further supports the allegation that he deliberately destroyed potential evidence. The forensic report, which indicates that the applicant‟s device was corrupted, substantiates claims of evidence tampering, suggesting a deliberate attempt to obstruct justice. Thus, the embargo under Section 37 of the NDPS is clearly applicable to the facts of the instant case.
46. It is pertinent to note that this case is in a premature stage of trial. The evidence gathered, including the search and seizure proceedings, is yet to be tested through judicial scrutiny. Any procedural lapses alleged by the applicant relating to search and seizure are issues that fall squarely within the domain of the Trial Court‟s jurisdiction.
47. It would be inappropriate for this Court to address or preemptively adjudicate these technical matters at the bail stage, as they must be determined based on a full examination of evidence during trial proceedings. Granting bail on these grounds would undermine the purpose of the NDPS and could jeopardize the ongoing investigation and trial.
48. Therefore, keeping in view the aforesaid facts and circumstances as well as the discussion on law, this Court is not inclined to grant bail to the present applicant at this stage.
49. Accordingly, the instant petition stands dismissed along with the pending applications, if any.
50. It is made clear that the observations made hereinabove shall not be construed as an expression of this Court on the merits of the case.
51. The order be uploaded on the website forthwith.