Full Text
HIGH COURT OF DELHI
DIBAKAR KARAD ..... Petitioner
Through: Mr. Mohammad Ali and Mr. Chhatresh Kumar Sahu, Advocates.
Through: Mr. Ritesh Kumar Bahri, APP for State
Branch.
JUDGMENT
1. The present petition has been filed under Section 438 CrPC seeking anticipatory bail in connection with FIR No.0079/2024 under Sections 20/25/29 NDPS Act registered at PS Crime Branch, North Delhi.
VIKAS MAHAJAN, J.
2. Vide order dated 16.05.2024 notice was issued in the present petition and the State was directed to file a status report. The status report dated 21.05.2024 has been handed over in Court and the same is taken on record.
3. The case of the prosecution as borne out from the status report is that on receipt of a secret information on 14.04.2024, the accused Kamlesh Kumar Shukla along with his associates Sujit Kumar Shah and one CCL were apprehended near Metro Pillar No.P-15U, Shah Alam Bandh Marg, Jahangirpuri, Delhi, while they were going to supply illicit ganja to one Virender in the area of Jahangirpuri through an Auto Rikshaw no.DL1R AA
9972.
4. During the search of Auto/TSR, 25.530 kg of ganja was recovered from a suitcase in the possession of accused Kamlesh Kumar Shukla & CCL “A” and 24.940 kg from the possession of Auto/TSR driver Sujit Kumar Shah. A total 50.470 kg illicit ganja was recovered from the possession of above two accused and one CCL.
5. Thereafter Kamlesh Kumar Shukla and Sujit Kumar Shah were arrested and CCL was apprehended. During the interrogation, co-accused Kamlesh Kumar Shukla disclosed the name of Dibakar Karad (the present petitioner) R/o Brahmapur, Odisha as the main source of illicit ganja and the name of Harish Chandra as the main operator of supply chain of ganja from Odisha to New Delhi.
6. Learned counsel for the petitioner at the outset submits that the petitioner is innocent and has been falsely implicated in the present case.
7. He further submits that the petitioner/accused has not been named in the said FIR, nor he was present at the time of alleged raid carried out by the police party. He also submits that no contraband has been recovered from the petitioner or at his instance.
8. He contends that the only incriminating circumstance pressed by the prosecution against the present petitioner is the alleged disclosure statements of the co-accused persons recorded under Section 67 of the NDPS Act. In this regard, he submits that the said statements are inadmissible in evidence as per the judgment of the Hon’ble Supreme Court in Toofan Singh vs. State of Tamil Nadu:: (2021) 4 SCC 1.
9. Lastly, he submits that the antecedents of the petitioner are clean and barring the present case, no case is pending against him.
10. Per contra, learned APP for the State has argued on the lines of the status report. He submits that the petitioner has been accused of a grave and serious offence, therefore, he may not be enlarged on bail.
11. He submits that the name of the present petitioner was disclosed by the co-accused Kamlesh Kumar Shukla who also stated that on 12.04.2024, on the directions of accused Harish Chandra, he took the delivery of 50 kg illicit ganja from the petitioner in Brahmapur, Odisha.
12. He further submits that it has also been disclosed by the co-accused Kamlesh Kumar Shukla that on 12.04.2024 the petitioner came at Railway Station Brahmapur and he handed over illicit ganja to him against payment of Rs.50,000/- cash, while the remaining amount of Rs.50,000/- was transferred by Harish Chandra Shukla in the account of the petitioner.
13. He submits that the accused Harish Chandra Shukla was also arrested from his duty place i.e. Bithari Camp BSF, Hakimpur, Distt. 24 North Paragna, WB on 04.05.2024 and during interrogation he also disclosed the name of the petitioner and told that he used to buy illicit ganja from the petitioner. He also disclosed that he is in touch with the petitioner for last few years and has been purchasing ganja from him.
14. He also submits that on checking the account statement of co-accused Harish Chandra, it has been corroborated that he paid Rs.49,000/- to the petitioner from his Phonepe.
15. I have heard the learned counsel for the petitioner, as well as, learned APP for the State and have perused the material on record.
16. Learned counsel for the petitioner has strenuously argued that the statement of co-accused persons is not an admissible piece of evidence in view of the judgment of the Hon’ble Supreme Court in Toofan Singh (supra), however, the said contention cannot be sustained as the Hon’ble Supreme Court in State of Haryana vs Samarth Kumar 2022 SCC OnLine 2087 has clarified that the benefit of the judgment of Toofan Singh (supra) cannot be taken at the time of adjudicating a plea seeking pre-arrest bail, the relevant para of which reads thus:
17. Further, it has been mentioned in the status report that the co-accused persons have named the petitioner in their disclosure statement as the person who had supplied contrabands against payment of money. This aspect has also been corroborated by the bank statement of co-accused Harish Chandra.
18. The involvement of the petitioner prima facie has also been established by electronic evidence in the form of location charts and call detail records. It is stated in the status report that the petitioner gave the delivery of illicit ganja to the accused Kamlesh at Railway Station Brahmapur, Odisha and the location of phones of both accused is at the same place i.e. Railway Station Brahmapur. Further, from the analysis of CDR of the petitioner and his associates it was found that the petitioner was in constant contact with accused Kamlesh and Harish Chandra from the time of delivery till the recovery from the co-accused persons.
19. It is also stated in the Status Report that in respect of the consignment dated 12.04.2024, accused Dibakar Karad received part payment in his account no.2812000100091419 of PNB Saralapadar, Odisha directly. Apart from this instant transaction there are many similar transactions in his account which are being investigated.
20. It is also borne out from the Status Report that PC remand of accused Kamlesh Kumar Shukla was obtained and efforts were to made to arrest the accused Dibakar Karad but he could not be arrested and a notice under Section 67 NDPS Act was served upon him with the directions to join the investigation before the I.O on 24.04.2024, but he did not join the investigation on the given date and time.
21. In view of the above, custodial interrogation of the petitioner is required to unearth the entire conspiracy and the supply chain of contraband. The allegations against the petitioner are also serious in nature.
22. Accordingly, the present petition along with pending applications, if any, is dismissed.
23. Order be uploaded on the website of this Court.
24. Order dasti under signatures of the Court Master.
VIKAS MAHAJAN, J. JULY 30, 2024