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HIGH COURT OF DELHI
PRADEEP KUMAR SRIVASTAVA ..... Petitioner
Through: Mr Narender Singh, Advocate.
Through: Mr Subhash Bansal, Sr. Special Counsel
JUDGMENT
1. The present petition has been filed under Section 439 CrPC read with Section 37 NDPS Act seeking regular bail in connection with Case No.SC/14/2022 registered as case no.III/38/DZU/2021 P.S. R.K. Puram, New Delhi under Sections 8(c), 22(c), 23(c) & 29 of the NDPS Act, 1985 (hereinafter referred to as “ the Act ”).
2. Vide order dated 12.09.2022 notice was issued in the bail application of the petitioner and the respondent was directed to file the status report. The respondent has filed the status report dated 06.07.2023, which forms part of the record.
3. The case of the prosecution as borne out from the status report is that on the basis of secret information dated 28.06.2021, the Director-General, NCB, authorized the Zonal Director to undertake proceedings of Controlled Delivery and it was further assigned to Sh. Samuel C. Hangzo, I.O. with directions to take necessary further actions in connection with Parcel AWB 5383669992 lying at DHL Courier, Rama Road, New Delhi. The NCB Team reached DHL Express Private Limited, Rama Road, New Delhi and met Sh. Mayank Chauhan of DHL Express and inquired about the suspect parcel Airway Bill No.5383669992.
4. On the suspected parcel, the details of the consignor were Mr. Ramesh Rai, Near Mohalla Hanuman Mandir, Murgiya Raghunathpur, Samastipur, Bihar, Mobile-9807781134, email: pradeeppluse@gmail.com and details of consignee as Jessica…Ohio, U.S.A. During search of said parcel, it was found to contain 06 cylindrical shaped rolls of elastic, which upon further scrutiny revealed that in the rolls of elastic there was a layer of blue carbon paper and beneath that there was a strip of leucoplast plaster.
5. On removing the plaster, it was found that there were strips of tablets bundled together in the form of a roll and bound together using white thread. All the tablet strips were taken out and examined and were found to contain same information printed, “NRx Tramadol Hydrochloride Tablets, OL-Tram Tablets 100 MG; Manufactured by HAB Pharmaceuticals, SIDUCUL, Selaqui, Dehradun, Batch No. 964-08, Mfg. 01/2021. From all the rolls, in total 500 strips were found and each strip contained 10 tablets. All the 5000 tablets were weighed and found to be 2 Kgs.
6. The contraband was seized vide panchnama dated 29.06.2021 in the presence of a public witnesses. As per Complaint filed by the respondent, the CCTV footage of booking of shipment No. 5383669992 was collected and filed alongwith Certificate under Section 65B of Indian Evidence Act.
7. During investigation, the witness Ms. Akansha Devanshi tendered her voluntary statement under Section 67 NDPS Act on 10.07.2021 wherein she revealed that she was working with DTDC Express at Hazratganj Office, as an executive officer, and stated that the said parcel was brought by the petitioner.
8. Further during investigations, on 10.07.2021, Mr. Faiyaz Ahmed, Retail Cluster Head, DTDC Express Ltd, in pursuance of Notice under section 67 NDPS Act tendered his voluntary Statement wherein he stated that the parcel No. 5383669992 was booked from retail counter of DTDC, Capital Cinema Building, Lucknow on 21.06.2021, which was booked by the petitioner. Further, the said witness also led to the Office of Pradeep Srivastava (Petitioner herein) and had identified him.
9. Thereafter, notice under Section 67 NDPS Act was issued to the petitioner, who appeared and tendered his voluntary statement on 10.07.2021, wherein he revealed that he had booked the said parcel NO. 5383669992 on 21.06.2021 and also stated that he had packed the said tablets by hiding it under fancy dori (thin rope). He also revealed the details of the person who had provided him the said tablets. Consequently, the petitioner was arrested on 10.07.2021 and tendered his further statement on 11.07.2021 wherein he revealed about the involvement of co-accused Mukesh Prajapati who had provided the Tramadol tablets for packing in said parcel and for sending the same abroad.
10. During the course of investigation, notice under Section 67 NDPS Act was issued to co-accused-Mukesh Kumar Prajapati, who tendered his voluntary statement on 20.07.2021 and stated that he had given parcel no.5383669992 to the petitioner for booking purposes. He also revealed about involvement of Mohd. Saif Usmani as the person who provided the details of address of the receiver of said parcels. Consequently, Mukesh Prajapati was arrested on 21.07.2021.
11. During investigation, the statement of Durgesh Kumar Mishra was also recorded under section 67, NDPS Act on 21.07.2021, wherein he corroborated the involvement of Mukesh Prajapati in the commission of present offence under the NDPS Act.
12. The learned counsel for the petitioner submits that no contraband has been recovered from the present petitioner or at his instance. He further submits that the parcel was also booked by Ramesh Rai and not by the present petitioner.
13. According to the learned counsel, an incriminating circumstance pressed by the prosecution against the present petitioner is that he has been identified by the witness, namely, Akanksha Devanshi, the person at the courier agency who had booked the parcel. He submits that the parcel had been booked by the petitioner because he has a franchisee of DTDC Express Limited (Courier Company Vide Franchisee Code UF 1636, I.D.C. No.UP1636002 and running franchisee work at Shop No.6, Eklavya Nagar, Near CID Office, Lucknow, U.P. 226001) and in the office of the petitioner/accused a person came to book the parcel for USA but applicant had only the right to book parcel in India, so he forwarded the parcel to above office only to take commission from booking amount. It is thus, submitted that it is in this backdrop, the petitioner has been identified by witness Akanksha Devanshi, as the person who had booked the parcel.
14. He also submits that another incriminating circumstance is the WhatsApp chat between the petitioner and co-accused Mukesh Kumar Prajapati. In this regard, the submission of the learned counsel is that the WhatsApp chat can only be used as corroborating evidence and no conviction can be based solely on the basis of the WhatsApp chat. In support of his submission, learned counsel places reliance on the decision of Vinod Nagar vs. Narcotics Control Bureau: 2024 SCC OnLine Del 1067.
15. The further contention of the learned counsel for the petitioner is that the petitioner is in custody since 10.07.2021 and has been incarcerated for 02 years and 10 months. He places reliance on the decision of the Hon’ble Supreme Court in Rabi Prakash vs. State of Odisha: 2023 SCC OnLine SC 1109, to contend that the bar contained in Section 37 of the NDPS will not come in the way of granting bail to the present petitioner when there is an inordinate delay in the conclusion of trial. It is further the contention of the learned counsel that the prosecution has cited 23 witnesses and till date only 03 witnesses have been examined.
16. Per contra, the learned senior special counsel for the respondent/NCB has argued on the lines of the status report. Learned counsel for the respondent/NCB submits that the offence is of serious nature and the total quantity of the contraband recovered from the petitioner along with the coaccused is commercial, therefore, the petitioner has to satisfy the twin conditions mentioned in Section 37 of the NDPS Act before being released on bail. He submits that apart from the statement of the witnesses namely Akansha and Faiyaz, there is CCTV footage of the booking of the parcel which forms part of the record.
17. He submits that the petitioner cannot take advantage of the decision of the Hon’ble Supreme Court in Rabi Prakash (supra) in view of the three- Judge Bench of the Hon’ble Supreme Court in NCB vs. Mohit Aggarwal:
18. I have heard the learned counsel for the petitioner, as well as, the learned senior special counsel for the NCB and have perused the material on record.
19. Prima facie, there appears to be some substance in the contention of the learned counsel for the petitioner that there is nothing unusual about the identification of petitioner by Akanksha Devanshi as undisputedly the petitioner has a franchisee of DTDC Express. However, this aspect will be considered by the Trial Court in depth at an appropriate stage with reference to the evidence that may be led by the prosecution.
20. Insofar as the incriminating material in the form of WhatsApp chats between the petitioner and co-accused is concerned, relevant would it be to note that incriminating material in the form of WhatsApp chat cannot establish a live link between the petitioner and co-accused. Reference in this regard may be had to the judgment of Supreme Court in Bharat Chaudhary v. Union of India: (2021) 20 SCC 50, the relevant para of which reads as under: “10…Reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited.”
21. Furthermore, it cannot be lost sight of the fact that the petitioner has been incarcerated from 10.07.2021 and the nominal roll dated 15.11.2022 manifests that the petitioner had spent 01 year and 04 months as on 11.04.2022 thus, as on date the petitioner has spent 03 years in custody. The trial of the petitioner is at an initial stage and many witnesses are yet to be examined. Accordingly, the trial is going to be a protracted one and the petitioner cannot be kept in custody till the conclusion of the trial. Reference in this regard may be had to the judgment of the Supreme Court in Mohd. Muslim vs. State (NCT of Delhi): 2023 SCC OnLine SC 352, wherein the Supreme Court after taking into account the decision of a Three Bench in KA Najeeb vs. UOI: (2021) 3 SCC 713 has held that the right of an accused person to a speedy trial as guaranteed by Article 21 of the Constitution cannot be circumscribed by the rigors of Section 37 of the Act. The relevant paragraphs of the judgment read as under:-
21. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik). 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 country. 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. State 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” (also see Donald Clemmer's ‘The Prison Community’ published in 1940). 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.
25. For the above reasons, the appellant is directed to be enlarged on bail, subject to such conditions as the trial court may impose. The appeal is allowed, in the above terms. No costs.” (emphasis supplied)
22. Similarly, the Supreme Court in Rabi Prakash (supra) has held as under:- “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.” (emphasis supplied)
23. Considering the aforesaid circumstances in entirety and the dicta of the aforesaid decisions, this Court is of the opinion that the present petitioner has made out a case for grant of regular bail. Accordingly, the petitioner is enlarged on regular bail subject to his furnishing a Personal Bond in the sum of Rs.50,000/- and one Surety Bond of the like amount to the satisfaction of the Trial Court/CMM/Duty Magistrate, further subject to the following conditions:a) Petitioner shall appear before the learned Trial Court as and when the matter is taken up for hearing. b) The petitioner shall not contact, nor visit, nor offer any inducement, threat or promise to the complainant or any of the prosecution witnesses or other persons acquainted with the facts of the case. The petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial. c) He shall provide the address where he would be residing after his release and shall not change the address without informing the concerned IO/SHO; d) He shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times.
24. The petition stands disposed of.
25. It is clarified that any observation made herein-in-above is only for the purpose of deciding the present bail application and same shall not be construed as an expression of opinion on the merits of the case.
26. Copy of the order be forwarded to the concerned Jail Superintendent for necessary compliance and information.
27. Order dasti under signatures of the Court Master.
28. Order be uploaded on the website of this Court.
VIKAS MAHAJAN, J. AUGUST 01, 2024