Ishrar Ahmad @ Pahadi v. State (Govt. of NCT of Delhi)

1. The present application under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) has been filed by the applicant seeking regular bail in case FIR bearing NO. 25/2016, registered at Police Station (PS) Special Cell, Delhi for the offences punishable under Sections 18/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 („NDPS Act‟).

2. Briefly stated, the facts of the present case are that on an information received by the Special Cell, Northern Range, the mobile numbers 8493733249, 8726284545, 8415016400, 970665247 and some other numbers were kept under legal interception on specific information being received on 15.05.2016 through secret sources. Four accused persons were apprehended which resulted into recovery of 69 kg of high quality opium which is commercial quantity. During investigation, it surfaced that out of the said recovered contraband, 15 kg was to be specifically supplied to present accused/applicant Ishrar Ahmad, who is also one of the key members of inter-state drug cartel, who receives and purchases large quantity of drugs from the supplier members of the cartel and thereafter distributes the same on huge monetary gain. The applicant Ishrar Ahmad was arrested on 17.05.2016 when he had come to Delhi to receive the consignment of opium. The mobile number used by Ishrar Ahmad was 8756347097. During further investigation, the intercepted conversation was analysed and it was found that there were several calls between the present applicant and main supplier Nazir Hussain @ Nizam from mobile number 8415016400. It is also stated that the intercepted conversation revealed that present accused was demanding contraband from co-accused Nazir Hussain and was also discussing payments against the same. The intercepted calls and voice samples of applicant Ishrar Ahmad were got examined at FSL where the FSL report revealed that the voice samples matched with the intercepted conversation voice of the applicant. It was also revealed that huge suspicious transaction of more than Rs. 3 crores were found within two years from 2014 to 2016 in the bank account of co-accused Nazir Hussain and many times cash was deposed from Sahajahanpur, U.P. which is the place of residence of the present accused applicant and co-accused from where they were arrested.

3. Learned senior counsel for present accused/applicant argues that the applicant has been in judicial custody for 06 years 09 months and therefore, is covered by the guidelines laid down in para 15(iii) of decision in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731. It is also argued that the applicant was not named in the FIR and has been falsely implicated in the present case. It is stated that nothing has been recovered from the applicant and he is not the main supplier of the contraband. It is also argued that except for the disclosure statement which is inadmissible in law, there is nothing on record against the applicant, and reliance in this regard is placed on the decision of Hon‟ble Apex Court in Tofan Singh v. State of Tamil Nadu (2020) SCC Online SC 882. It is also stated that present accused/applicant retracted his statement under Section 67 NDPS Act before the learned Trial Court. It is further stated that it will take long to conclude the trial, and therefore, bail be granted to the applicant.

4. Per contra, learned APP for the State argues that the CDR and the FSL report are clearly indicative of the accused being involved in the present offence. It is also stated that the learned Trial Court may be directed to expedite the trial, however, the bail be rejected since there is every reason to believe that the accused is involved in the present case.

5. This Court has heard arguments addressed by both the sides and have gone through the case file.

6. In the case at hand, the present accused/applicant has been arrested on the basis of a confessional statement and also on the basis of analysis of his mobile number 8756347097 which was recovered from him on the spot.As per the transcription of intercepted conversation and the CDR, the applicant was in regular touch with the co-accused persons. A huge amount was deposited in the bank account of the main supplier/accused Nazir Hussain in his bank i.e. Bank of Baroda, Kant, Uttar Pradesh, which is the residence of both applicant Ishrar Ahmad and co-accused Sartaj Ali, who allegedly buy contraband in huge quantity from the main accused Nazir Hussain. The FSL report also indicates that the voice in the intercepted conversation which is regarding payment of money, for which no plausible reason has been given by the applicant, had matched with the voice samples of the present applicant. The recovery in this case is of commercial quantity of opium, which would attract rigors of Section 37 of NDPS Act.

7. However, the present accused/applicant has been in judicial custody since 17.05.2016. As informed to this Court by learned APP for State, out of 26 witnesses, only 10 witnesses have been examined before the learned Trial Court as of now. In this regard, a reference can be made to the decision of Supreme Court Legal Aid Committee (supra) whereby the Hon‟ble Apex Court, while dealing with prolonged incarceration of undertrial prisoners under NDPS cases in State of Maharashtra, had issued certain directions for grant of bail in those cases where trial was delayed and the accused had already undergone more than half of the sentence prescribed, subject to certain conditions. The relevant observations are reproduced as under: “15....We, therefore, direct as under:

(i) Where the undertrial is accused of an offence(s) under the

Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bailamount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:

(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;

(ii) the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;

(iii) the benefit of the direction in clauses (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses;