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HIGH COURT OF DELHI
JUDGMENT
DEEPAK NAGIYA ..... Petitioner
Through: Mr Mir Akhtar Hussain and Ms Sonia Goswami, Advocates.
Through: Mr. Amol Sinha, ASC for the State with Mr Kshitiz Garg, Mr Ashvini
Kumar and Ms Chavi Lazarus, Advocate with SI Om Prakash, PS
ANTF, Crime Branch.
1. This is an application under Section 438 CrPC read with Section 482 CrPC seeking anticipatory bail in FIR No.0077/2023 under Sections 21/25/29 of the NDPS Act registered at PS Crime Branch.
VIKAS MAHAJAN, J.
2. The case of the prosecution as borne out from the status report dated 08.07.2023 filed by the State in the present bail application is as under:-
3. The learned counsel for the petitioner submits that the case of the prosecution is that on secret information being received accused Surender @ Bhalu was intercepted by the raiding team and upon his search 350 gm. of heroin was recovered from the pocket of his pant.
4. During interrogation, accused Surender @ Bhalu disclosed that he used to sell heroin in retail from the house of his niece (bhanji)/Neha. Based on the disclosure statement of Surender @ Bhalu, Neha was arrested on 29.03.2023 from her sister’s house and 45 gm. of heroin and 521 gm. of powder/power cut was recovered.
5. During further investigation, accused Neha disclosed that she used to procure heroin from one Nisha Malik, wife of Ravi Malik. Accordingly, Nisha Malik was arrested on 11.04.2023.
6. Accused Nisha Malik disclosed that she used to procure heroin from Deepak Nagiya i.e the petitioner herein.
7. Learned counsel for the petitioner submits that no recovery has been made from the petitioner. He submits that the name of the petitioner as surfaced only in the disclosure statement of accused Nisha from whom also there is no recovery of contraband.
8. He submits that present is a case where the IO/ASI Rupesh along with one middleman, namely, Anurag along with other police personnel of ANTF, Crime Branch, Daryaganj, New Delhi unleashed a reign of extortion, bribery and false implication against accused persons. He invites the attention of the Court to the complaint dated 12.04.2023 made by one Anil Kumar, brother-in-law of accused Nisha, to the Superintendent of Police, CBI, ACB, New Delhi and the verification report dated 12.04.2023 to contend that a case has been registered against ASI Rupesh and middleman Anurag under Section 120B of the IPC and Sections 7 & 7A of PC Act, 1988, pursuant to which ASI Rupesh and Anurag were apprehended along with the bribe amount of Rs.10 lakhs. He submits that ASI Rupesh after speaking to higher officials had demanded Rs.30 lakhs for facilitating non implication of Ravi Malik and accused Nisha Malik in an NDPS case. However, the mother of Ravi Malik could only arrange a sum of Rs.12 lakhs and paid the same to the police personnel of ANTF, Crime Branch, Daryaganj, New Delhi through ASI Rupesh and middleman Anurag after which they released Ravi Malik but implicated Nisha Malik for intermediate quantity of heroin.
9. The police personnel has promised the family of Ravi Malik that once balance amount of Rs.18 lakhs are paid, they will facilitate the bail of Nisha Malik. However, as the family did not want to pay any further bribe, the aforesaid Anil (brother-in-law of Nisha Malik) made a complaint to CBI on 12.04.2023.
10. He submits that the petitioner was granted interim protection by the learned Special Judge vide order dated 29.04.2023, thereafter the petitioner joined the investigation on 02.05.2023 from 5:30 PM to 7:15 PM and again on 03.05.2023 at 2:00 PM. To buttress his contentions, he has invited the attention of the Court to the notice under Section 91 CrPC as well as notice under Section 67 NDPS Act which bears the endorsement to the effect that the petitioner has joined investigation an also produced a mobile phone instrument.
11. Inviting the attention of the Court to the order dated 17.04.2023 passed by the learned Special Judge, NDPS, learned counsel for the petitioner contend that the accused Neha who was arrested on 23.03.2023 and from whom intermediate quantity of contraband was recovered, has been enlarged on bail. Further, inviting the attention of the Court to the order dated 27.04.2023 passed by the learned Special Judge, NDPS, he contends that the accused Nisha Malik, who was arrested on 14.04.2023 and from whom no recovery of contraband was made, was also enlarged on bail.
12. Inviting the attention of the Court to the order of the learned Special Judge dated 12.05.2023, he submits that one of the grounds on which the anticipatory bail application of the petitioner has been dismissed is that the mobile phone, which was produced by the petitioner during investigation, had been formatted by him before handing over the same to the Investigating Officer. He submits that notice under Section 91 CrPC was given to the petitioner on 03.05.2023 and on the same date, the petitioner submitted his mobile phone in five minutes to the IO hence, there was no occasion for the petitioner to format the phone. He further submits that whether the mobile phone had been formatted or not is a question to be tested during trial based on FSL report.
13. In view of the above, it is urged by the learned counsel for the petitioner that the petitioner be granted concession of anticipatory bail.
14. Per contra, learned ASC for the State submits that the petitioner was granted interim protection till 12.05.2023 by the Special Judge with a direction to join the investigation.
15. The petitioner was interrogated on 02.05.2023, 03.05.2023 and 10.05.2023 but did not cooperate and tried to mislead the investigation. He submits that CDR analysis of the mobile numbers reveals that petitioner’s family was found in touch with accused Nisha through mobile phone. He, therefore, contends that anticipatory bail of the petitioner be dismissed.
16. I have heard the learned counsel for the petitioner, as well as, the learned ASC for the State and have perused the record.
17. It is not in dispute that the petitioner’s name has been mentioned by accused Nisha Malik but undisputedly neither any recovery of contraband has been made from Nisha Malik nor from the present petitioner.
18. A perusal of the order dated 27.04.2023, whereby the accused Nisha Malik has been granted regular bail shows that Nisha Malik has been granted bail on the ground that no recovery of contraband was made from her. Further, recovery from accused Neha, who had named Nisha Malik, was also of intermediate quantity and that there is nothing on record to connect Nisha Malik to the main accused Surender @ Bhalu.
19. As per the case of the prosecution, the recovery is from Surender @ Bhalu and from Neha. Both the accused have not mentioned the name of the petitioner. There is no material on record to connect the present petitioner to the said accused persons.
20. The only incriminating material against the petitioner is the disclosure statement of accused Nisha Malik and CDRs showing the petitioner’s family being in touch with said Nisha Malik. Though disclosure statement of coaccused Nisha Malik under Section 67 of the NDPS Act is not admissible per se in view of the decision of the Supreme Court in Tofan Singh vs. State of Tamil Nadu: (2021) 4 SCC 1, but even if the advantage of the same is not extended to the petitioner at this stage of considering his anticipatory bail application in view of the decision of Supreme Court in State of Haryana vs. Samarth Kumar: (Crl.A.1005/2022), wherein it has been observed that the advantage of Tofan Singh (supra) perhaps can only be taken at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial but not at the stage of anticipatory bail, still it cannot be overlooked that co-accused Nisha, who has named the present petitioner has already been granted regular bail on the ground that no recovery of contraband has been made from her.
21. Further, recovery from the co-accused Neha was also of intermediate quantity and there is nothing on record to connect her to the petitioner on one hand and to the main accused Surender @ Bhalu on the other hand.
22. Though in the status report, it is mentioned that the petitioner has been previously involved in three criminal cases but the status of the said cases has not been disclosed in the status report. Further, a perusal of the status report shows that none of the alleged cases are under the NDPS Act.
23. Apart from there being no recovery from the petitioner, as well as from Nisha Malik, who had named the petitioner, this Court cannot shut its eyes to the fact that ASI Rupesh and one middleman Anurag, have been arrested by the CBI while accepting bribe amount of Rs.10 lakhs from Nisha Malik and her husband Ravi Malik in connection with the present case. Therefore, at this stage false implication of some of the accused including petitioner cannot be ruled out.
24. Insofar as the CDRs are concerned, I am of the view that the evidentiary value of the same shall be seen at the stage of the trial and it cannot be a ground to deny anticipatory bail to the petitioner at this stage. I am supported in my view by the judgment of the Supreme Court in State (by NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr.: (2022) 12 SCC 633, the relevant paragraph of which reads as under:-
a. It is stated by learned counsel for the Respondent that the call record details show that the applicant was in frequent contact with one Amarjit Singh Sandhu on 26.01.2021, i.e, the date when the Tramadol tablets were Existence of any conspiracy between the applicant and Sayed Javed Hussain based on the CDRs collected by the co-accused Sayed Javed Hussain. He further states that according to the CAF/CDR details, location of the co-accused Sayed Javed Hussain and the applicant is also found to be in Rajouri Garden on 26.01.2021. b. In my view, in the absence of any financial dealings, any recovery of narcotic substance or psychotropic substance from the applicant or from the premises of the applicant and/or at the behest of the applicant, the fact that the CAF/CDR details show calls between the applicant and Amarjit Singh Sandhu and the applicant and Sayed Javed Hussain, cannot be a ground to deny him the bail in the present matter
26. Considering the circumstances in totality, this Court is of the view that the petitioner has made out a case for grant of anticipatory bail. It is accordingly directed that in the event of his arrest, the petitioner may be enlarged on bail subject to his furnishing a Personal Bond in the sum of Rs.25,000/- and one Surety Bond of the like amount subject to the satisfaction of the Arresting Officer/SHO concerned and further subject to the condition that he will join the investigation as and when directed by the IO concerned.. c. It is for the prosecution to establish the guilt, abetment, conspiracy of the applicant beyond a reasonable doubt which is not borne out from the CAF/CDR details. (emphasis supplied) VIKAS MAHAJAN, J. SEPTEMBER 13, 2023