Bhaskar Khatnani v. Narcotics Control Bureau

15. Fourth Panchnama was drawn near the stairs of Gate No.2, Laxmi Nagar, Metro Station, Delhi at around 21:00 hours wherein it is alleged that various tablets i.e. V.C. Don, Activan 2mg, Lorezapam, Phentermine, and Lupin-10 were recovered. All the proceedings completed at about 22:10 hours on the same day.

16. On this basis, the learned counsel submits that there are discrepancies in the timings of preparation of the said Panchnamas. The first 2 Panchnamas were purportedly prepared simultaneously at the same time i.e. 09:55 hours and 10:00 hours respectively but at two different places viz. Kirti Nagar and West Patel Nagar, which is not possible. He further submits that both the seizures in the said Panchnamas have been conducted by the same team of officers.

17. Learned counsel further submits that the places of search in the first 2 Panchnamas were Kirti Nagar and West Patel Nagar. The proximity between the two areas is 2-3 kms and it is not just highly improbable but next to impossible that the teams could have reached the second location, conducted the search and accordingly prepared a Panchnama, all in 5 minutes of time.

18. Learned counsel also refers to the third Panchnama as it is corelated with the Malkhana register. The said Panchnama shows that the proceedings started at the residence of applicant in Gurgaon at 15:40 hours whereas the Entry No.24B in the Malkhana register shows that the said recovered material was deposited at 15:50 hours, which is not possible. The said Malkhana is located at R.K. Puram and again, it is impossible to reach there from Gurgaon in just 10 minutes of time.

19. He also relies upon the special flow chat filed by the respondent NCB to further indicate the discrepancies in the timings of conduction of searches in the Panchanamas on the one hand and the version of the prosecution on the other. Learned counsel submits that such discrepancies raise a reasonable doubt, enough to weaken the prosecution case, in favour of the applicant.

20. He further submits that the clash in the timings mentioned in the Panchnamas is only possible if the raiding team did not prepare the documents at the place of raid/search, rather at their offices. The learned counsel submits that these discrepancies point towards the ill conduct of the officers who fabricated the said documents and thus, these documents cannot go through the scrutiny of law.

21. Learned counsel for the applicant brings the attention of this court to another Panchnama drawn for raid conducted at co accused Pulkit Kumar’s house, at Page 396 of the present petition, wherein the investigating officer notes that on disclosure by the applicant, the raiding team alongwith the applicant Bhaskar Khatnani left from the applicant’s house in Gurgaon at 16:40 hours and travelled together to another accused Pulkit’s house in Noida. The said Panchnama is timed as 18:10 hours and as per the same, the team alongwith the applicant were in Pulkit’s house till 19:30 hours. On this basis, learned counsel submits that the said disclosure of the applicant which is timed at 19:00 hours is fabricated as how would the team get the time to record the disclosure statement of the applicant when infact, they were at Pulkit’s house in Noida conducting raid.

22. He further submits that the applicant has been shown to be arrested on 18.08.2018 as per their own complaint whereas the information purported to be supplied by him to the respondent was on 17.08.2018 which further reflects the loophole in respondent’s made up case against the applicant herein.

23. Learned counsel for the applicant refers to the first Panchnama drawn at the DHL office to submit that the said Panchnama gives a detailed description of the packaging and appearance of the contraband seized from there but there is no mention of any sticker on or alongwith the said seized medicines. On this basis, he submits that there is not interlink between the actual seizures of contraband and the stickers recovered from the applicant herein.

24. Learned counsel also submits that the applicant has been apprehended on the basis of the disclosure statement of another accused person and the same is a matter of trial and needs to be proved in accordance with law.

25. It is submitted by the learned counsel that the Section 27 of Indian Evidence Act, 1872 makes the said recorded statement of the applicant exculpatory. He relies on the judgment of the Supreme Court in Tofan Singh Vs. State of Tamil Nadu reported as (2021) 4 SCC 1 wherein it was held that confessions made to NDPS officers by the accused are inadmissible in evidence.

26. Learned counsel for the applicant relies upon the judgment of the Supreme Court in Rabi Prakash vs. The State of Odisha, SLP (Crl.) No(s).4169/2023 rendered on 13.07.2023 to submit that the fundamental right guaranteed under Article 21 of the Constitution of India must override the statutory embargo created under Section 37 of the NDPS Act. On this basis, learned counsel submits that the applicant has been in incarceration for a period of 4 years and is entitled to be considered for enlargement on bail.

27. He further relies upon the judgement of the coordinate bench of this court in BAIL APPLN. 1383/2022 titled as Phundreimayum Yas Khan vs. State (GNCT of Delhi) dated 11.01.2023 which reiterates the ratio laid down in Tofan Singh (supra).

28. Learned counsel also submits that five years have passed since the applicant was arrested on 18.08.2018 and yet, the case has only reached the stage of framing of charges. He further submits that the examination of witnesses is yet to commence and it is apparent that the trial will take a long time to conclude.

29. He further submits by referring to the Nominal Roll that there is no previous involvement of the applicant and the jail conduct of the applicant is also satisfactory, as also admitted by the prosecution.

30. It is submitted by the learned counsel for the applicant that the co-accused persons viz. Amit Ranjan and Manish Mohan have since been granted bail and another co-accused Pulkit Kumar has been discharged in the present case. On that, learned counsel submits that the case against the applicant is similar to that of the co-accused persons and requests that the applicant may also be enlarged on regular bail.

ARGUMENTS ON BEHALF OF THE RESPONDENT:

31. Per contra, Mr. Subhash Bansal, Senior Standing Counsel for respondent NCB submits that as per the Panchnama, a search of Bhaskar Khatnani was conducted by the NCB but no drugs or psychotropic substance was recovered from his house. On further search, heavy quantity of forged stickers of Roxicodone, Xanax, Alprazolam tablets, Hydrocodone Bitartrate and Acetaminophen tablets, Zolpidem tartrate tablets were recovered.

32. He further submits that the stickers recovered during the search were found similar to the stickers which were seized alongwith the medicines from other co-accused person. He refers to the second Panchnama and submits that Xanax boxes recovered from the premises of accused Gaurav Mehta had the same stickers as the ones recovered from the applicant.

33. Learned counsel further submits that at the instance of the applicant/accused Bhaskar Khatnani, a search party was conducted and a seizure was done at Laxmi Nagar Metro Station which clearly points towards the involvement of the applicant in the drug trafficking racket.

34. Learned counsel for the respondent submits that not only there is a recovery on the instance of applicant, but there are chats of the applicant with co-accused Gaurav Mehta from whom there is a direct recovery.

35. He further submits that during the raid conducted at the house of the applicant on 17.08.2018, the various forged wrappers of medicines were recovered from the applicant which as per their case, were used for sticking on the psychotropic medicines for the purpose of trafficking.

36. Learned counsel for the respondent NCB submits that this is a case of illegal drug trafficking racket involving many persons having different roles to play. It is a conspiracy involving sourcing, packaging and sending illegal drugs through couriers to different countries and as such, the contraband passes many hands. He further submits that it is not necessary that contraband will be recovered from each of the accused persons involved in the transaction and as such, even without the recovery, the applicant can be tied to the crime.

37. The learned counsel for the respondent submits that the distance between Kirti Nagar and West Patel Nagar is barely 2-3 kms and can be easily covered in 10 minutes and thus, submits that there is no discrepancy in the first two Panchnamas as argued by the learned counsel for the applicant.

38. Learned counsel submits that the secret information was received by them around 08:00 hours. The first seizure as per the first Panchnama was conducted at DHL Express office, Kirti Nagar from where 2 parcels containing contraband were recovered. The second seizure was from the office/godown of co-accused Gaurav Mehta in West Patel Nagar around 10:00 hours. He submits that one cannot go into these technicalities at this stage as it is a matter of trial.

39. He further submits that it is an admitted fact that the seizures were conducted and contraband was recovered and the same has not been challenged by the applicant.

40. On query by this court as to how the present case is not affected by the judgment in Tofan Singh (supra), the learned counsel for the respondent submits that there is a difference between a confession and a statement. Section 27 of Indian Evidence Act, 1872 (hereinafter referred to “IEA” in short) deals with discovery of facts and Section 25 of IEA deals with confession. He further submits that a statement per se doesn’t become inadmissible but wherever there is a clear confession of guilt, the same is hit by Section 25 of IEA and as such, need not be proved as against a person accused of any offence. Learned counsel submits that in the present case, the statement of the applicant has only given some facts which can be corroborated by leading evidence or examining the witnesses.

41. Learned counsel for the respondent places emphasis on the disclosure statement given by the applicant on 17.08.2018, wherein he stated that there is a consignment of contraband supposed to be received by him at Laxmi Nagar Metro Station, Gate no. 2, in between 21:00 to 22:00 hours on the same day, which will be delivered by the sales boys of the co-accused Manish Mohan who runs Vinay Pharmaceuticals.

42. It is submitted by the learned counsel that upon this information provided by the applicant, a raiding team was formed and a recovery was made exactly at the same place, time and manner as was described by the applicant in his disclosure statement. He also submits that even the sales boy Pankaj Pandit who delivered the cartons of tablets at Laxmi Nagar Metro Station was confirmed to be working at Vinay Pharma Store associated to co-accused Manish Mohan.

43. On this basis, learned counsel for the respondent submits that a recovery made solely at the instance of the applicant is extremely relevant in the present case as it clearly points towards his involvement in the offences as alleged to be committed by him.

44. Learned counsel for the respondent further submits that the said statements of the accused persons stands corroborated by the chats between them, which are supported by a certificate under Section 65- B of IEA.

45. As per the CDR details of mobile number used by the applicant Bhaskar Khatnani, it was found that he was in constant touch with accused Gaurav Mehta and other co accused persons. In this regard, learned counsel refers to the chats and Forensic Examination Report dated 06.11.2018 from the LCR, particularly the chat between the applicant and co accused Gaurav Mehta at Page 1348 and submits that there is a clear discussion of the stock, quantity, rates and orders for the medicines such as Valium lypin, Xanax, Oxy, Phentramine, Adderall, Ritalin etc.

46. Learned counsel submits that there are tracking numbers, addresses for delivery, money transfers etc. exchanged in the chats between the applicant and co accused Gaurav Mehta. He further submits that the accused persons were running a whole business of trafficking illegal psychotropic medicines.

47. He also submits that as per Section 66 of the NDPS Act, there is a presumption about the documents seized from the custody or control of any person, which covers the chats between the accused persons.

48. Learned counsel refers to Section 8 of the IEA to submit that the prior conduct of the applicant, with regard to the chats recovered from the applicant’s mobile phone, is relevant to the case and stands established as against the applicant.

49. Learned counsel also refers to Section 35 of the NDPS Act, 1985 to submit that there is a presumption with regard to the culpable mental state of the accused which includes intention, motive and knowledge of the facts. On this basis, he submits that the chats between the applicant and the accused Gaurav Mehta clearly proves the complicity and culpability of the applicant.

50. Learned counsel relies on the judgment dated 19.07.2022 of the Hon’ble Supreme Court in Narcotics Control Bureau Vs Mohit Aggarwal reported as 2022 SCC OnLine SC 891 wherein it was held that the length of incarceration is by itself not a consideration that can be treated as a persuasive ground for granting relief under Section 37 of the NDPS Act and submits that the said judgment is squarely applicable to the present case due to the similarity in facts, and the applicant may not be enlarged on bail.

REBUTTAL BY THE APPLICANT:

51. Learned counsel for the applicant refers to the order of charge dated 05.06.2023 to submit that the learned Trial Court has observed the shortcomings in the chats and on this basis, he submits that the data of the mobile phone is fabricated.

52. He further submits that nothing has been recovered from the possession of the applicant and except statements of the applicant and co-accused persons under Section 67 of NDPS Act, there is nothing against the applicant and the case has been based on fabricated documents.

53. It is further argued that the recovery made from Laxmi Nagar cannot be attributed to the applicant and those two persons who were caught with medicines there have not been made witnesses by the prosecution.

54. With the aforesaid submissions, learned counsel for the applicant concludes that as there is no material evidence against the applicant and as the applicant has already spent 4 years in incarceration and has never misused bail granted before, he is entitled for and may be enlarged on bail in the present case.

ANALYSIS AND CONCLUSIONS:

55. This court has considered the arguments of the learned counsel for the applicant as well as the learned standing counsel for the respondent NCB.

56. Mr. Yogesh Saxena, learned counsel for the applicant has delved deep into the facts of the entire case, however, this Court is of the opinion that at the stage of considering bail application, only general reference to the facts would suffice, lest the observations prejudice either side. In that background, this Court proceeds to consider the bail application.

57. The case, according to the prosecution is that it is on the disclosure statement of one Gaurav Mehta, a co-accused, that the name of the applicant was revealed. On that basis, raid was conducted at the residence of the applicant and a huge number of fake stickers, alleged to be of medicines etc. were recovered and seized. It is undisputed that no recovery of actual contraband or any medicines etc. was at all made from the premises of the applicant.

58. That the prosecution has also alleged that it was upon the disclosure statement of the applicant that the officers of the respondent NCB were able to apprehend other co-accused persons namely, Pulkit Kumar, Manish Mohan and Amit Ranjan. It is further alleged that a recovery was made from Laxmi Nagar Metro Station at 21:00 hours from whose possession 2000 strips of tablets of V.C. Don (Hydrocodone) was seized at the spot, at the instance of the applicant. Thus, the prosecution claims that the applicant had knowledge of the transaction that was about to occur, establishing the clear complicity.

59. That apart, the prosecution also hinges the applicant’s culpability and complicity in the offences on the basis of CDR call records as also the messages exchanged between the applicant and Gaurav Mehta, another co-accused from whose premises, illegal psychotropic medicines were recovered in commercial quantity. Thus, according to the prosecution, the applicant is the link in the entire chain of circumstances whose presence is natural and the entire transaction has to be appreciated holistically.

60. It is also the case of the prosecution that the fake stickers that were recovered from the house of the applicant were the same which were present on the boxes in which contraband was seized from coaccused Gaurav Mehta’s premises. Thus, according to the prosecution, the same stickers being recovered from the applicant, establishes the culpability and complicity of the applicant to the crime.

61. This court has perused the records meticulously alongwith Mr. Saxena, particularly the 5 Panchanamas which were alleged to have been drawn up by the raiding team from the morning at 9:55 hours till the evening hours on 17.08.2018 to show discrepancies in the timings, the material alleged to have been recovered, the improbability of the raid etc., to submit that the applicant has been falsely framed in the present case. In the opinion of this Court, the aforesaid issue is subject to proof and would require trial and thus, this Court refrains from making any observations on that aspect.

62. It is alleged that the raid at the premises of the applicant resulted in seizure of, what the prosecution terms as “fake stickers” of the medicines which were also alleged to have been found on the boxes containing the medicines etc. seized during raid at other premises. Even if it is assumed, for the sake of arguments, that some stickers were indeed recovered in the raid at the house of the applicant, it is not disputed that no contraband, or any other psychotropic substance was recovered and therefore, the applicant cannot be held to be in possession of any contraband at all to fall within the offences under the NDPS Act, 1985.

63. Since it is also on record that the suspicion upon and the subsequent arrest of the applicant was only upon the disclosure statement recorded under section 67 of the NDPS Act of the coaccused Gaurav Mehta, coupled with the fact that no contraband etc. were recovered from the possession of the applicant, the ratio of the judgement of Supreme Court in Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1 would be squarely applicable to the facts arising in the present case. The arguments of learned counsel for the respondent regarding non applicability of the ratio laid down in Tofan Singh (supra) in respect of confession or statement is concerned, the same are untenable for the reason that the distinction is irrelevant inasmuch as officers of the NCB have been considered to be “Police Officers” and thus, the inculpatory part of such disclosure statement would necessarily have to be eschewed from consideration. The relevant para of the aforesaid judgement is extracted hereunder:

64. There is nothing placed on record to show the previous involvement of the applicant in similar offences read with the fact that no contraband or such offensive/psychotropic material was recovered from his possession coupled with the fact that the applicant was arrested on the basis of the disclosure statement of the co-accused, the rigours of section 37 of the NDPS Act, itself would be inapplicable.

65. That apart, the applicant has been in incarceration for almost 4 years excluding the period of interim bail and shall also be entitled to consideration for release on bail in view of the ratio laid down by the Supreme Court in the judgements in the cases of Rabi Prakash vs. The State of Odisha, SLP (Crl.) No(s). 4169/2023, Mohd Muslim @ Hussain vs. State (NCT of Delhi), Crl.A. No. 943/2023 and Biswajit Mondal @ Biswajit Mandal vs. The State of West Bengal, Crl. A. No. 450/2023 in respect of embargo in section 37 NDPS Act being subservient to the provisions of Article 21 of the Constitution of India. In these cases, the Supreme Court held as under: (a) Rabi Prakash vs. The State of Odisha, SLP (Crl.) No(s). 4169/2023 rendered on 13.07.2023:-

(b) Mohd Muslim @ Hussain vs. State (NCT of Delhi), Crl.A. No. 943/2023 rendered on 28.03.2023:-

(c) Biswajit Mondal @ Biswajit Mandal vs. The State of West

Bengal, Crl. A. No. 450/2023 rendered on 14.02.2023:- “The appellant seeks enlargement on bail in FIR No.303/2021 under Sections 21(c)/29 of the NDPS Act. The appellant has undergone a sentence of about 1½ years. The trial has just begun and no other criminal antecedents qua the aforesaid act of drug use. The material detected is the medicine Codenine but of 10 litres. Taking in to consideration the period of sentence undergone by the appellant and all the attending circumstances but without expressing any views on the merits of the case, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court.”

66. Keeping in view the facts that are placed on record, coupled with the fact that in the present case, the embargo under section 37 NDPS Act is not attracted and considering the ratio laid down by the Supreme Court in the aforesaid judgements, this Court is of the view that the applicant is entitled and is thus, directed to be enlarged on regular bail on stringent conditions, which shall be enumerated subsequently.

67. Hence, the applicant is enlarged on regular bail on a personal bond in the sum of Rs.1,50,000/- with 2 sureties of the like amount to the satisfaction of the learned Trial Court, subject to the following conditions:- (a) He shall surrender his passport, if any, to the Court concerned and shall under no circumstances leave Delhi-NCR without prior permission of the Court concerned; (b) He shall cooperate in the trial and shall appear before the Court as and when required;

(c) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;

(d) He shall not indulge in similar or other criminal activity of any nature whatsoever; (e) He shall provide his mobile number(s) to the Investigating Officer and keep it at his person and operational at all times; (f) He shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer; (g) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/ Court concerned by way of an affidavit; and (h) He shall inform the IO about the movement or visitation to any city or State out of Delhi-NCR at least 48 hours before such travel and shall also inform the IO about the return. He shall contact the IO everyday evening at 7 PM so long as he is out of Delhi-NCR.

68. Any infraction of the aforesaid conditions shall make the applicant liable for the revocation of this bail.

69. Nothing in this order shall be construed as an expression of opinion on the merits of the pending matter.

70. The application is disposed of in the above directions.

TUSHAR RAO GEDELA, J. AUGUST 17, 2023