Full Text
HIGH COURT OF DELHI
JUDGMENT
PHUNDREIMAYUM YAS KHAN ..... Petitioner
Through: Mr Harshit Jain, Adv. (DHCLSC) with Mr Prakhar Sharma, Ms
Samiksha Garg and Mr S.K. Yadav, Advs.
Through: Mr Subhash Bansal, Sr. Standing Counsel with Mr Raghav Bansal, Adv.
1. This is an application seeking grant of regular bail to the applicant in Case No. 186/2021, FIR No. VIII/02/DZU/2021 registered at P.S. NCB, Delhi under section 8(C)/29 of NDPS Act, pending before the Patiala House Courts, New Delhi.
2. The brief facts of the case are that on 30.01.2021, a secret information was received at Delhi Zonal Unit, NCB that one person namely Sayed Javed Hussain is travelling to Manipur by Air India Flight No. AI-889 from Terminal-3, IGI Airport and is carrying huge quantity of NRX Medicines. He was apprehended at the airport and on his search he was found carrying 36,000 tablets of Tramadol weighing about 22.[1] kg as well as 20 bottles of Codeine Syrup. Subsequently, Sayed Javed Hussain was arrested and during the course of investigation, while tendering his statement under section 67 of NDPS Act, he revealed of the present applicant, i.e. Phundreimayun Yaz Khan. He stated that the applicant is his friend and he used to purchase the contraband from Delhi through the applicant and thereafter sell the contraband in Manipur. Co-accused Sayed Javed Hussain further disclosed that on 26.01.2021, he reached Rajouri Garden Metro Station where the applicant sold him the said contraband procured through Amarjit Singh Sandhu. Hence, the applicant was arrested.
3. The statement of the applicant was also recorded under section 67 of the NDPS Act, wherein he disclosed that he was running a pharmacy business since 2017 and he used to purchase the Narcotics Medicines from one Amarjit Singh Sandhu. He revealed that the recovered contraband was also purchased from him by cash.
4. The learned counsel for the applicant submits that there is no evidence against the applicant, except the disclosure statement of the co-accused Sayed Javed Hussain and it is solely on this basis, that the FIR has been registered against the applicant. He further submits that neither any CCTV footage was obtained from the Metro Station nor any public witness was associated at the time of arrest of the applicant. It is also stated that nothing is recovered from the applicant or at his instance.
5. The main reliance of the learned counsel for the petitioner is on the ratio of “Tofan Singh v State of Tamil Nadu” [2021 4 SCC 1] to say that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. He ARORA states that the two questions which were framed by the Hon’ble Supreme Court in Tofan Singh(supra) were as under:
6. After detailed analysis, the conclusions arrived by the Hon’ble Supreme Court were as under:
7. Mr. Jain, learned counsel for the applicant states that the alleged location as per the CDRs of the applicant and Sayed Javed Hussain at ARORA Rajouri Garden is stated to be on 26.01.2021, whereas the recovery of the alleged drugs/arrest of Sayed Javed Hussain was made on 30.01.2020[1], which is after four days and does not create any proximity between the two instances. He further states that there are no allegations or prima facie documents to show any money trail whatsoever between the applicant and Sayed Javed Hussain or Amarjit Singh Sandhu.
8. He further states that the prosecution has not been able to bring on record even a single piece of evidence that the alleged drugs recovered from the co-accused Sayed Javed Hussain were brought from Sh. Amarjit Singh Sandhu apart from his oral statement, i.e, alleged disclosure, nor has the prosecution tried finding out the batch number of the said medicines or tried to find out the manufacturer as to whom the said drugs were supplied to. It is also stated that the as per the complaint itself, no inventory of the seized drugs with the items and their batch numbers were made for the purpose of identification of each tablet/bottles, etc. by the police officials which further creates a doubt about the alleged raid/arrest/recovery.
9. Learned counsel for the applicant submits that no investigation/enquiry was ever undertaken to find out the manufacturer of the alleged recovered drugs in question and so as to how the same were alleged to have been recovered from the co-accused. He states that the applicant had a licence to deal with manufacturing and sale of the medicinal and pharma products Furthermore, the applicant is in custody for more than 1.[5] years.
10. Mr. Jain submits that the cardinal principle of Criminal Law specifically speaks of innocence of the accused until proven guilty. He says that it is well settled that mere suspicion cannot take place of evidence and ARORA in the present case, the prosecution is only relying upon circumstantial evidence against the present applicant which at best can only raising a doubt or suspicion upon the applicant and nothing more than that. Reliance is placed upon a judgement of the Apex Court titled as “Jaharlal Das v. State of Orissa” [(1991) 3 SCC 27] wherein it was held that no conviction can be founded upon mere conjectures and suspicion and they should not replace legal proof under any circumstances. Further reliance is placed on the case of “Khekh Ram v. State of Himachal Pradesh” [(2018) 1 SCC 202] which reiterated the said principle to state that suspicion, no matter how grave, cannot take the place of proof.
11. It is also submitted by the learned counsel for the applicant that the statement of the applicant under Section 67 is clearly hit by the bar of Section 25 of the Indian Evidence Act as it is a statement made before a police officer and is not admissible. The only exception being Section 27 of the Indian Evidence Act.
12. He further states that at best, the only incriminating material against the applicant is the phone call record and the statement recorded under section 67 of the NDPS Act. He states that Section 27 of the Indian Evidence Act is not applicable in the present case as there is no recovery on the basis of the statement.
13. Lastly, Mr. Jain has placed a strong reliance on Section 27 of the Indian Evidence Act as well as a coordinate judgement of this Court titled as “Amit Ranjan v. Narcotics Control Bureau” [2022 SCC OnLine Del 1532], more particularly paras 16, 17 and 33 which read as under- “16. The Narcotics Control Bureau has further submitted that the verdict of the Hon'ble Supreme Court in Tofan Singh (supra) is of no ARORA assistance to the applicant in view of the sufficient substantial material on record to connect the petitioner with the crime besides statements under Section 67 of the NDPS Act, 1985. The Narcotics Control Bureau has further submitted that the verdict of the Hon'ble Supreme Court in Tofan Singh's case can be taken into consideration only at the stage of conclusion of the trial and not at the stage of consideration of grant of bail. Furthermore, reliance was placed on behalf of the Narcotics Control Bureau on the verdict of the Hon'ble Supreme Court in “Tofan Singh v. State of Tamil Nadu” (2021) 4 SCC 1, a judgment dated 29.10.2020 with specific reference to observations in paragraph 152, which reads to the effect:—
14. Per contra, learned counsel for the respondent states 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 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.
15. Mr. Bansal, learned standing counsel for the respondent submits that Amarjit Singh Sandhu is also involved in another NDPS case bearing no. VIII/28/DZU/2020 for recovery of 50,000 Tramadol tablets, which is a commercial quantity and is absconding in the said case as well. He further submits that NBWs were issued against Amarjit Singh Sandhu and he is found absconding. An anticipatory bail application was also moved by him which was dismissed by this Court.
16. Learned counsel for the respondent states that the incriminating material seized on record corroborates with the statement of the accused which he had voluntarily tendered and admitted during investigation. He states that the statement tendered by the applicant under section 67 of NDPS Act led to the discovery of Amarjit Singh Sandhu, who provided the commercial quantity of Narcotic Medicines to Sayed Javed Khan, at the instance of the present applicant. It is argued that this is a discovery of fact which was discovered in consequence of the information received from the applicant in the custody of a police officer and hence, falls within the exception of section 27 of the Indian Evidence Act.
17. Furthermore, it stated by the counsel for the respondent that the reliance of the applicant on the judgement of Tofan Singh (supra) will not rescue the applicant from his culpability in the present case and he states that the statement under section 67 of NDPS Act may not be admissible, however, a statement leading to discovery of facts within the knowledge of the applicant which further corroborated with the arrest of other accused persons as well as seizure of contraband and incriminating material on record shall attract the exception of section 27 of the Indian Evidence Act.
18. Mr. Bansal states that the Supreme Court in the judgement of “State of Kerela and Ors v. Rajesh and Ors” [2020 SCC Online SC 81], has categorically interpreted the mandate and rigours of section 37 of NDPS Act and thereby denied for grant of bail to the accused person. He says that the Supreme Court in various other judgements titled as “Collector of Customs v. Ahmadalieva Nodira” [(2004) 3 SCC 549], “Union of India v. Ram Samujh and Ors.” [1999(9) SCC 429] and “Union of India v. Rattan Malik” [(2009) 2 SCC 624] has also made observations qua reservations for grant of bail under section 37 of NDPS Act.
19. He has also relied on a judgement of the Supreme Court titled as “Mehboob Ali v. State of Rajasthan”, [(2016) 14 SCC 640] to emphasise his arguments regarding section 27 of the Indian Evidence Act to hold that the whereabouts of Mr. Amarjit Singh Sandhu was given by the applicant and hence, his statement under section 67 of the NDPS Act made disclosures about new facts which were discovered in consequence to the information recd from the applicant in the custody of the police officer. Relevant paras of Mehboob Ali (supra) read as under- ARORA
15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the police. The statement of both the accused has led to discovery of fact and arrest of coaccused not known to police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency notes. Thus the information furnished by the aforesaid accused persons vide information memos is clearly admissible which has led to the identification and arrest of accused Anju Ali and as already stated from possession of Anju Ali fake currency notes had been recovered. As per information furnished by ARORA accused Mehboob and Firoz vide memos Exts. P-41 and P-42, the fact has been discovered by police as to the involvement of accused Anju Ali which was not to the knowledge of the police. Police was not aware of accused Anju Ali as well as the fact that he was dealing with fake currency notes which were recovered from him. Thus the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of the other accused persons and the entire chain of circumstances clearly makes out that the accused acted in conspiracy as found by the trial court as well as the High Court.
18. In Ismail v. Emperor it was held that where as a result of information given by the accused another co-accused was found by the police the statement by the accused made to the police as to the whereabouts of the co-accused was held to be admissible under Section 27 as evidence against the accused.
20. Considering the aforesaid dictums, it is apparent that there was discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co-accused was nabbed on the basis of identification made by accused Mehboob and Firoz. That he was dealing with fake currency notes came to the knowledge of police through them. Recovery of forged currency notes was also made from Anju Ali. Thus the aforesaid accused had the knowledge ARORA about co-accused Anju Ali who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the police hence the statements of the accused persons leading to discovery of fact are clearly admissible as per the provisions contained in Section 27 of the Evidence Act which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in Sections 25 and 26 of the Evidence Act.”
20. Lastly, Mr. Bansal submits that that applicant has to overcome the bar of Section 37 of the NDPS Act. He states that these are drug trafficking cases and in such cases, it will never be that all the accused persons would be found in possession of drugs or that there would be documentary proof showing exchange of drugs or money trail. In drug trafficking cases, it is the conspiracy of all the accused persons who are involved in the illegal handling and transportation of drugs.
21. I have heard learned counsel for the parties and gone through the documents. In the present case, I am to see the following: 21.[1] The relevance of section 27 of the Indian Evidence Act a. As per the judgement of Amit Ranjan v. Narcotics Control Bureau (supra) the coordinate bench has held that the disclosure statements made under section 67 of the NDPS Act are statements made to Police officers and in terms of section 25 of the Indian Evidence Act are barred under Indian Evidence Act, except to the extent of any other recovery having been effected pursuant to that alleged disclosure statement.
ARORA b. It is relevant to note the observations of this Hon’ble Court in State v. Navjot Sandhu @Afsan Guru [Crl. A. No. 80/2003] wherein this Hon’ble Court, after placing reliance on Pulukuri Kottaya and Ors v. King- Emperor [1946SCC OnLine PC 47], and several other judgements of the Hon’ble Supreme Court and other courts, summarized the law governing Section 27 of the Indian Evidence Act as follows:
ARORA section 27 of the Indian Evidence Act, it is necessary that the information given by the applicant lead to discovery of some new fact which was not within the knowledge of police and that knowledge was first time derived from the disclosure made by the applicant. In addition, the information must be in relation to a material object. The discovery of some fact must relate to commission of some offence. In the present case, it is the case of the prosecution that the statement of the applicant lead to the discovery of Amarjit Singh Sandhu who was supposedly the main supplier of contraband. d. I am unable to agree. In the present case, the prosecution themselves have stated that Amarjit Singh Sandhu was involved in a similar case earlier and a case under the NDPS Act bearing no. VIII/28/DZU/2020 was registered against him. Even NBWs were issued and he has been declared as absconding. In this view of the matter, there is no new fact which has been disclosed by the applicant regarding Amarjit Singh Sandhu dealing with prohibited contraband substances. The said fact was already within the knowledge of the respondent. Even otherwise, the statement of the applicant has not led to any recovery of contraband. Admittedly, Amarjit Singh Sandhu has neither been found, nor arrested and hence, there is no question of any contraband having been recovered from him. Thus, the disclosure statement made under Section 67 of the NDPS Act by the applicant cannot be read against the applicant. 21.[2] Recovery of contraband from the applicant In the present case there is no narcotic substance or psychotropic substance recovered from the applicant or from his ARORA premises. There is no recovery. The disclosure statement made by the applicant, according to me cannot be read against the applicant. The fact that the anticipatory bail moved by Amarjit Singh Sandhu has been rejected by this Court or that Amarjit Singh Sandhu is absconding, cannot be a ground to deny bail to the present applicant. 21.[3] Monetary transactions between the applicant and other coaccused namely Sayed Javed Hussain and Amarjit Singh Sandhu In the present case, there are no monetary transactions, bank statement or finances which shows the sale/purchase of prohibited narcotic substance or psychotropic substance between the applicant, Sayed Javed Hussain and/or Amarjit Singh Sandhu. Except the statement of Sayed Javed Hussain who stated that he used to purchase contraband in Delhi through the applicant, there is nothing which shows the sale and purchase of prohibited narcotic substance or psychotropic substance between the applicant, Sayed Javed Hussain and Amarjit Singh Sandhu 21.[4] Existence of any conspiracy between the applicant and Sayed Javed Hussain based on the CDRs 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 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.
ARORA 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. 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. 21.[5] Applicability of the rigours of section 37 of NDPS Act a. In the present case, there is no recovery of commercial quantity from the applicant, at the applicant’s behest or from the applicant’s premises. This court in “Shravan Kumar v. State of NCT of Delhi” in Bail Application No. 175/2018 has held that:— “Undisputedly, the case of the prosecution qua the petitioner is based upon circumstantial evidence. No recovery of any contraband was affected from the petitioner. Allegations against him are that he conspired with co-accuses persons for committing the aforesaid offences. The petitioner was arrested after about twenty days of the arrest of the co-accused Jagdish on 05.09.2017. The prosecution has placed reliance only on call detail record between the petitioner and co accused Saroj Subudhi. It is alleged that accused sent Mobile NO. 8860594548 or the accused Jagdish to co accused Saroj from Mobile No. 9650310668 through SMS, This circumstance alone at this stage ARORA is not enough to deny bail to the petitioner despite bar under section 37 of the NDPS Act.” b. In the present case there is no recovery from the applicant, Amarjit Singh Sandhu has not been arrested, nothing has been recovered at the instance of the applicant and there is no material to the link the applicant with the recovery of the commercial quantity from Sayed Javed Hussain, except Sayed Javed Hussain’s own statement. In this view of the matter, the rigours of section 37 of the NDPS Act do not apply to the applicant.
22. The case of the prosecution, in so far as the applicant is concerned, is circumstantial, i.e. based solely on disclosure statement of the co-accused Sayed Javed Hussain which is per se not admissible without there being any corroboration. The prosecution has not been able to establish any connection between the subject offence and the location/CDRs of the accused persons, where the applicant is alleged to be present at the time when the contraband was collected by Sayed Javed Hussain. Merely because the applicant had been having frequent calls with the co-accused, would not be sufficient to hold that applicant is guilty of the subject offence.
23. The Supreme Court in “Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence” [(2018) 8 SCC 271], has held that-
24. In this view of the matter and relying on the observations made hereinabove, I am inclined to allow the bail application. The applicant is directed to be released on bail in Case No. 186/2021, FIR No. VIII/02/DZU/2021 registered at P.S. NCB, Delhi under section 8(C)/29 of NDPS Act, pending before the Patiala House Courts, New Delhi, subject to the following conditions: (a) The applicant shall furnish a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only) each with 01 surety in the like amount, to the satisfaction of the Trial Court; (b) The applicant shall not leave the country and if the applicant has a passport, he shall surrender the same to the trial Court; ARORA
(c) The applicant shall furnish to the IO/SHO concerned his cellphone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;
(d) The applicant shall drop a Google pin location from his mobile phone to the IO concerned so as to show his whereabouts everyday; (e) The applicant shall not indulge in any act or omission that is unlawful, illegal or that would prejudice the proceedings in pending cases, if any; (f) The applicant or his family members/relatives/friends will not contact or try to intimidate the complainant or her family or tamper with any of the witnesses in anyway.
25. Nothing stated hereinabove shall tantamount to an expression of opinion on the merits of the case.
26. A copy of this judgment be communicated by the Registry to the concerned Jail Superintendent.
JASMEET SINGH, J JANUARY 11, 2023 MS ARORA