Himanshu Singh v. State

1. The present application under Section 439 of the Code of Criminal Procedure („CrPC‟) filed on behalf of Himanshu Singh, the applicant, seeks grant of regular bail in case FIR No. 171/2022 dated 25.03.2022 under Sections 20/29/61/85 of the Narcotics Drugs and Psychotropic Substances Act, 1985 („NDPS Act‟) and Section 201 of the Indian Penal Code, 1860 ('IPC'), registered at PS Kotla Mubarakpur.

2. Briefly stated, the facts relevant for adjudication of the present application are as under: i. On 24.03.2022, secret information was received by Sub-Inspector Gajendra Singh posted at PS Kotla Mubarakpur that a person who was stated to be actively involved in peddling drugs would arrive at Kidwai Nagar to deliver a consignment of drugs. Acting upon the said information, a team of police personnel reached Nala Pulia, towards Kidwai Nagar, Near Gurjar Chowk, Kotla Mubarakpur, Delhi. At around 11:20 PM, the team spotted a boy who arrived on a grey scooty bearing registration number DL 3SE0Y 7846. The team apprehended him and served a notice under Section 50 of the NDPS Act upon him. ii. One brown brick wrapped in brown tape was recovered from the rightside pocket of his trouser. The substance in the said packet was tested with a field testing kit and the same was found to be charas. The substance recovered from him weighed 334 grams. iii. On enquiry, the person who was apprehended revealed his identity as one Raghav Mandal, aged 23 years and a resident of H. No. 114, Savitri Nagar, Malviya Nagar, New Delhi. Subsequently, the present FIR was registered, initially under Sections 20/61/85 of the NDPS Act and Raghav Mandal was arrested on 25.03.2022. iv. During the course of investigation, Raghav Mandal disclosed that he knew Himanshu Singh, i.e., the present applicant from the last 7-8 years and that the applicant used to allegedly supply charas in Delhi at the instance of one Lal Vedant Nath Shah Deo, who is also a coaccused in the present case. Raghav Mandal further disclosed that the charas which was recovered form him was also allegedly supplied by the applicant for delivery to someone in Kidwai Nagar. He stated that he used to get paid about Rs. 500/- to Rs. 1000/- for every delivery. v. During search, Raghav Mandal‟s mobile phone of make MIUI, colour metallic, having SIM No. 9958673379 was also recovered. vi. Based on Raghav Mandal‟s disclosure, a raid was conducted at the residence of the applicant but he was not found there. However, after some time, he surrendered before the police and was arrested in the present case on 25.03.2022. At the time of surrender, the applicant also produced his mobile phone of make OnePlus, colour green having two SIM cards bearing numbers 8851795202 and 7703029094. When the said phone was checked, it was allegedly found to have been intentionally formatted by the applicant before his surrender. vii. During interrogation, the applicant disclosed that Lal Vedant Nath Shah Deo was his classmate and he allegedly used to purchase charas and other narcotic substances from online sources and used to sell them at higher rates in Delhi and Noida. It was further disclosed that the applicant also got involved with the said activity with Lal Vedant Nath Shah Deo and used to pay him for the charas and other narcotic substances via PayTM or cash. The applicant further stated that his PayTM account is linked with his mobile number 8851795202 and Lal Vedant Nath Shah Deo‟s PayTM account is linked with the mobile number 7982583347. viii. The applicant also disclosed that Raghav Mandal, who was arrested earlier had also started supplying drugs at his instance only and that the recovered charas was also supplied to the applicant by Lal Vedant Nath Shah Deo and the applicant handed it over to Raghav Mandal for delivery. ix. Based on the applicant‟s disclosure, a team of police personnel reached the stated address of Lal Vedant Nath Shah Deo - Flat No. 101, First Floor, Tower A, Proview Techno City Apartments, Sector CHI-FI, Greater Noida, Uttar Pradesh. The said address was found locked. Non- Bailable Warrant („NBW‟) was issued against Lal Vedant Nath Shah Deo, however, the same could not be executed. Proceedings under Section 82 of the CrPC were issued against him on 27.04.2022 by the learned Special Judge (NDPS Act), Saket for his production on 05.07.2022. Lal Vedant Nath Shah Deo surrendered on 26.05.2022.

3. The present FIR was initially registered against Raghav Mandal on 25.03.2022 under Sections 20/61/85 of the NDPS Act. Subsequently, a chargesheet was filed on 20.05.2022 under Section 20/61/85/29 of the NDPS Act, arraying the applicant as accused, in addition to Raghav Mandal. By way of a supplementary chargesheet filed on 23.05.2022, the applicant was also charged under 201 of the IPC and co-accused Lal Vedant Nath Shah Deo was chargesheeted under Sections 20/61/85/29 of the NDPS Act and 201 of the IPC.

4. Learned Senior Counsel appearing on behalf of the applicant submitted that the applicant was arrested on 25.03.2022 and has been in judicial custody since 26.03.2022. The investigation in the present case in complete and the chargesheet stands filed. It was further submitted that the applicant was not initially named in the FIR, nor was he apprehended from the spot where the raid was initially conducted. No recovery of any incriminating material has been effected from him either. Nevertheless, it was pointed out that the recovery effected from co-accused Raghav Mandal in the present case is of an intermediate quantity and therefore, the rigors of Section 37 of the NDPS Act will not be applicable. It was further submitted that the applicant is a 22 year old student, pursuing a degree in law, with a good academic record and should be granted bail in the facts and circumstances of the present case.

5. Learned Additional Standing Counsel (Criminal) („ASC‟) appearing on behalf of the State has placed on record, a status report dated 16.09.2022, authored by Inspector Vinay Kumar Tyagi, SHO PS Kotla Mubarakpur, wherein it has been stated that a notice was sent to PayTM to provide the details and statements of the accounts linked with mobile numbers 8851795202 and 798253347. The required details were provided by PayTM and a perusal of the reply received showed that the applicant had credited a total sum of Rs. 4,70,390/- (Rupees Four Lakh Seventy Thousand Three Hundred and Ninety) between 25.06.2021 and 22.03.2022 to the account of Lal Vedant Nath Shah Deo. It was also found that a total sum of Rs. 28,03,561.11/- (Rupees Twenty-Eight Lakh Three Thousand Five Hundred and Sixty-One Rupees and Eleven Paise) was credited to the account of Lal Vedant Nath Shah Deo between 29.04.2021 to 24.03.2022. It was submitted that there was no plausible reason for college students to carry out transactions of the stated amounts and this pointed to their involvement in the alleged offences.

6. Learned ASC further submitted that during investigation, WhatsApp chats between Raghav Mandal and the present applicant were found wherein they were exchanging messages pertaining to supply of contraband. The last message in that regard is stated to have been exchanged on 24.03.2022, i.e., the date of alleged recovery of contraband from Raghav Mandal. It was further submitted that Call Detail records of the mobile numbers stated to be used by the applicant and other co-accused persons clearly show that they were in regular contact with each other. Learned ASC further submitted that in attempt to destroy evidence, the applicant had formatted his phone and thus, Section 201 of the IPC was also invoked for causing disappearance of evidence.

7. In rebuttal, learned Senior Counsel appearing on behalf of the applicant submitted that the alleged PayTM transaction, in itself, is not sufficient evidence to hold the applicant liable, in terms of Section 34 of the Indian Evidence Act, which reads as under:

It was further submitted that the veracity and purpose of the said transactions and the relevance of the Call Detail Records are all matters to be adjudicated upon by the learned Trial Court and are not sufficient grounds for denial of bail at this stage. In support thereof, the learned Senior Counsel for the applicant has placed reliance on a judgment dated 13.01.2023 passed by a coordinate bench of this Court in Jasbir Singh v. Narcotics Control Bureau, in BAIL APPLN. 1120/2022.

8. Learned Senior Counsel also submitted that screenshots of WhatsApp messages alleged to have been exchanged between him and co-accused Raghav Mandal also do not conclusively establish his involvement in commission of the alleged offences. In support of the said contention, reliance was placed on judgment of the Hon‟ble Supreme Court in Bharat Chaudhary and Ors. v. Union of India (UOI) and Ors., MANU/SC/1240/2021.

9. Heard learned counsel for the parties.

10. As per the notification being S.O. 1055(E) dated 19.10.2001 published in the Gazette of India, Extra, Pt. II, Sec. 3(ii) issued in the exercise of powers contained in Section 2(vii)(a) and Section 2(xxii)(a), the commercial quantity of charas (cannabis) is 1 kg. The present case relates to a recovery of 334 grams of charas which is admittedly an intermediate quantity and therefore, the rigors of Section 37 of the NDPS Act would not be applicable to the facts of the present case. The present applicant has been chargesheeted in the present FIR on the basis of disclosure statement of Raghav Mandal and no recovery has been effected from him.

11. Learned Additional Standing Counsel had handed up in Court, a photocopy of screenshots of WhatsApp chat from Raghav Mandal's phone alleged to have been taken place between the applicant and Raghav Mandal, on 24.03.2022. A bare perusal of the aforesaid alleged WhatsApp chat shows that there is no date mentioned in the said chat. It is further noted that the said photocopy was not supported by a certificate under Section 65B of the Indian Evidence Act, 1872. No seizure memo has been placed on record with respect to the said screenshots either.

12. Learned ASC also strenuously relied upon the fact that total sum of Rs. Rs. 4,70,390/- (Rupees Four Lakh Seventy Thousand Three Hundred and Ninety) was credited into the PayTM account of Lal Vedant Nath Shah Deo by the present applicant. In that regard, it is argued that the said transaction shows that the present applicant was involved in buying and selling drugs, as there is no plausible reason for a college student to carry out such transactions. It is pertinent to note that there is no evidence on record to indicate that the transaction, as mentioned above relates to the recovery in the present case or to any other offence of a similar nature under the NDPS Act. In absence of any evidence, it cannot be presumed that the said transactions related to the present recovery. Admittedly, the present applicant is not involved in any other offence punishable under the NDPS Act.

13. Since, as aforesaid, the rigors of Section 37 of the NDPS Act will not be applicable in the present case, the present application for bail should be considered as per general principles of law that hold the field regarding the law on bail, as laid down by judicial precedents, from time to time.