Sachin Makade v. Narcotics Control Bureau, New Delhi

Delhi High Court · 08 Dec 2022 · 2022:DHC:5398

Yogesh Khanna

BAIL APPLN. 1410/2022

2022:DHC:5398

criminal appeal_allowed Significant

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The Delhi High Court granted bail to accused in a narcotic trafficking case, holding that corroborative evidence without direct proof is insufficient to deny bail under the NDPS Act.

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BAIL APPLN.1410 and 1710 of 2022 HIGH COURT OF DELHI

Reserved on: 25th November, 2022 Pronounced on: 08th December, 2022

BAIL APPLN. 1410/2022
SACHIN MAKADE ..... Petitioner
Through: Ms.Malvika Trivedi, Senior Advocate with Mr.Nipupn Katyal, Mr.Shailendra Slaria, Ms.Sujal
Gupta, Advocates.

VERSUS

NARCOTICS CONTROL BUREAU, NEW DELHI ..... Respondent
Through: Mr.Subhash Bansal, Senior Standing Counsel with
Mr.Sashwat Bansal, Advocate.

BAIL APPLN. 1710/2022, CRL.M.(BAIL) 1127/2022, CRL.M.A. 13100/2022, 13376/2022
BARUN SURENDRA CHAUHAN ..... Petitioner
Through: Mr.Siddharth Aggarwal Senior Advocate with Mr.Nipun Katyal, Mr.Vivek Kumar, Mr.Abhinav
Sekhri, Advocates.

VERSUS

NARCOTICS CONTROL BUREAU, NEW DELHI & ANR. ..... Respondents
Through: Mr.Subhash Bansal, Senior Standing Counsel with
Mr.Shashwat Bansal, Advocate.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.

JUDGMENT

1. Both the petitions are being considered together. The brief facts are: Signing Date:08.12.2022 17:29 a) a prosecution complaint has been filed under Sections 22(c), 23(c), 24, 25, 27A read-with Section 29, NDPS Act before the Special Judge (NDPS Act), Patiala House Courts, New Delhi against the accused persons, i.e. Dipu Singh, Sachin Makade, Barun Surendra Chauhan, Tejas Rajesh Patel, Bablu Bhagwan Dangre, Taha Toufique, Oliva Sinha and Rohit Sanghpal Gaurkhede. b) on 31.01.2020, on the basis of an information, following recovery and seizure was effected on 31.01.2020: i) 4200 Tablets of Zolpidam (1.050 Kg) and ii) 6000 Tablets of Alprazolam (1.200Kg) from parcel bearing No. 535153356 destined to Great Britain, lying at TNT India Pvt. Ltd. (Fedex Courier) near new Custom House, IGI Airport. The documents attached with said parcel, revealed during investigations the address and mobile number of the consignor / accused Dipu Singh who was located in Lucknow and the recovery of tablets - narcotic medicines (drugs) was effected and seized vide Panchnama dated 01-02-2020, i.e. 12,000 Tablets of Tramadol (4.800 Kgs) being recovered from the residence of accused Dipu Singh at 551 KA/G-182, Azad Nagar, Alam Bagh, Lucknow, Uttar Pradesh; c) consequent upon the recovery of such commercial quantity from the parcel and further recovery of commercial quantity of Narcotic Tablets from the residence of Dipu Singh, who upon examination had voluntarily tendered his statement, under section 67, NDPS Act and admitted of committing an offence under NDPS Act. He further disclosed the names of other person involved in said illegal dealing with narcotic tablets and revealed the modus operandi of sending parcels not only from India but also parcels provided from Singapore to his clients. Investigations revealed involvement of co-accused Tejas Patel, Sachin Makade, Barun Surendra Chauhan, Bablu Bhagwan Dangre, and also disclosed their modus operandi followed in the commission of offences under the NDPS Act; d) accused Dipu Singh had disclosed one Tejas Patel of M/s.Krivi Export and M/s.Azesto Impex, Nagpur is also involved along with him and he made shipments of Tramadol through him, who operate from such firms at Nagpur, Maharashtra; e) During investigation the officers of NCB reached the office of said M/s.Azesto Impex Private Ltd., Tirupati Emperial 1, Nirala Society, plot no. 229, shop no. 1 & 2, 1st Floor Dighori, Nagpur, Maharashtra and upon inquiry the staff revealed Sachin Pandurang Makade and Barun Surendra Chauhan are the owners of the firm and though Tejas was working in the firm but he has separate firm in the name of M/s.Krivi Export. The computer kept in the office of aforesaid persons were checked and entries related to sending of narcotic medicines were found. During examination, one of their staff Udit informed main office of the firm is at plot no. 332, near Panchvati Ashram, Chitnis Nagar, Nagpur, Maharashtra. The Laptops containing entries /documents relating to illegal business of Tramadol, the printout of the documents, all were seized and were taken into possession vide Panchnama dated 11.02.2020; f) further on 11.02.2020 the team of NCB searched the office of M/s.Azesto Impex private Limited at Plot No. 332, near Panchvati Ashram, Chitnis Nagar, Nagpur, Maharashtra and in such office Sachin Makade, Barun Chauhan, Tejas Patel, Bablu and Amol were all found present. During investigations, search of the personal mobile phones and laptops of Sachin Makade, Barun Chauhan and Tejas Patel were checked and mails were found regarding orders of Narcotic tablets and chats. The files were also found. During investigation, they informed they book orders from Singapore for foreign countries through Lutz: Accordingly, mobile phone and laptop of Sachin Makade, Barun Chauhan and Tejas Patel were seized vide Panchnama dated 11.02.2020; g) during investigations, Barun Surendra Chauhan appeared on 12.02.2020 in pursuance to notice and tendered his voluntary statement under section 67 NDPS Act, 1985, whereby he admitted his involvement alongwith co-accused persons in trafficking/ transportation / shipping/ external dealing in Tramadol and other psychotropic substances/drugs from India to USA, UK and Singapore to USA, UK and other European countries. The said statement is part of documents filed with the complaint. Consequent upon information / documents from the Laptop & mobile phone and other material, Barun Surendra Chauhan was arrested on 12.02.2020; h) during investigation, mobile number 9921442642 used by Barun Chauhan was found in his possession and was also seized alongwith its Simcard. Upon scrutiny, it was found Barun Chauhan was in frequent contact with mobile nos.8275225770 & 7972798394 with Tejas Patel; no. 937102034[4], 9766284028 with Sachin Makade; and nos. 9834962467 & 7030460090 which belong to Bablu Bhagwan Dangre. Hence all these accused persons were found in contact with each other and allegedly involved in illegal trade of narcotic medicines. Relevant CDR details of said mobile numbers of accused were requisitioned and obtained. Further the mobile –data including whatsapp chat from mobile phone of Dipu Singh was also obtained. From the appraisal of said CDR details and transcript of whatsapp chat, it categorically transpired therefrom the said accused person were in regular contact with Dipu Singh (accused).

2. Thus, it is argued by the learned senior counsel(s) for the petitioners the main case is on 01.02.2020, twelve thousand tablets of tramadol were recovered from the house of co-accused Dipu and he named M/s.Azesto Impex Private Limited, Nagpur. Its office was searched on 11.02.2020 but no recovery was made. It transpired the present applicant and co-accused Sachin Makade were owners of the said firm. The petitioner joined the investigation but was arrested on 12.02.2020. It is stated he is in custody for the last two years and eight months and is the sole bread earner of his family and that twins were born to his wife during his custody period. Further he was granted interim bail but he did not misuse the liberty. It is submitted no recovery was ever made from his residence or at his instance. Though there are allegation of about 50 transactions through his laptop and mobile phones but the respondent have failed to find any purchaser or seller and the only evidence collected by the respondent is a probable factor of his doing business. It is alleged no credence can be given to the evidence collected so far as it is all in the nature of corroborative evidence and is not a direct evidence and in the absence of direct evidence, the corroborative evidence is of no use.

3. Thus, it was argued that only corroborative evidence is collected by the State and neither the purchaser nor the sellers have been examined. Even there is no evidence of receiving any amount from overseas, hence, without direct evidence the corroborative evidence cannot be put to use.

4. The learned senior counsel(s) for the petitioners have referred to Nilesh Dinkar Paradkar vs. State of Maharashtra (2011) 4 SCC 143, wherein the Court held as under:

“39. This apart, in the case of Mahabir Prasad Verma Vs. Dr. Surinder Kaur, this Court has laid down that tape recorded evidence can only be used as corroboration evidence in paragraph 22, it is observed as follows:- "Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence."

5. Further in CBI vs. V.C.Shukla and Ors. (1998) 3 SCC 410, it was held:

“17. From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account

and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence, to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second park speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed.

36. If no other evidence besides the accounts were given, however strongly those accounts may be supported by the probabilities, and however strong may be the evidence as to the honesty of those who kept them, such consideration could not alone with reference to s.34, Evidence Act, be the basis of a decree.”

6. In Assistant Commissioner of Income Tax vs. Manchukonda Shyam Prop 2020 SCC Online ITAT 9432, the Court held: “6.1. No evidence was found by the department to establish that assessee has given loans to Shri Lanka Anil Kumar during the course of search and no evidence was found regarding utilization of purported advances by Shri Lanka Anil Kumar. Shri Anil Kumar also subsequently retracted from the statement and clarified that he has not received any cash loans from the assessee. xxxxxx”

7. In Yash Jayeshbhai Champaklal vs. State of Gujarat in Criminal Misc. Application 1234/2022 decided on 02.03.2022, it was held as under:

“5. Having heard learned advocates for the appearing parties, it emerges on record that the applicant is not found in possession of any contraband article. Over and above that, the call data records may reveal that in an around the time of incident, he was in contact with the co-accused who were found in possession of contraband. Since there is no recording of conversation in between the accused, mere contacts with the coaccused who were found in possession

of contraband. Since there is no recording of conversation in between the accused, mere contacts with the coaccused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused. However, screenshot of one of the whatsapp chat in between the co accused shown to the Court, there is hardly anything which connects the applicant with the present offence or even asserting that he ordered for the same which were to be delivered by the accused found in possession of contraband. In absence of any other material, which is still to be retrieved from the devices of the mobile phone and information thereon which is still awaited, as considered by the Supreme Court in the case of Bharat Chaudhary (Supra) said material cannot be considered to be a sufficient material to establish any live link with the co-accused who were found in the possession of contraband.

7. I am conscious of the fact of restrictions imposed under Section 37 of „the Act‟, however, with a view not to prejudice the case of either side, I am not recording any conclusion with regard to existence of pirma-facie case at this stage. As submitted by the learned advocate and confirmed by the learned APP, there is no criminal antecedents of the applicant. There is also no apprehension shown even by the prosecution that he is likely to commit any offence while on bail. Considering the order passed by co-ordinate Bench of this Court in case of co-accused who is similarly situated as also aforesaid decision of the Supreme Court in the case of Bharat Chaudhary (Supra), I am inclined to grant bail to the applicant, that too, post submission of charge-sheet on following terms and conditions.”

8. In Gaurav Mendiratta vs. Narcotics Control Bureau in BAIL APPLN.1610/2021 decided on 07.02.2022, it was held:

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“17. As noted above, before the Court grants bail to an accused allegedly involved in an offence under the NDPS Act, the Court required to be satisfied that the accused is not guilty of the offence and that he will not involve himself in an offence under the NDPS Act while on bail.”

9. Further in Amit Ranjan vs. Narcotics Control Bureau, Delhi in BAIL APPLN.1189/2020 decided on 23.05.2022, it was held: “44. In the instant case, the Narcotics Control Bureau has not placed on record further incriminating evidence through the initial complaint dated 12.02.2019 nor through the supplementary complaint dated 08.01.2020 filed against the applicant in relation to any recovery having been effected pursuant to the stated voluntary statement made by the applicant under Section 67 of the NDPS Act,

1985. CDRs between the applicant and the co-accused persons per se at this stage do not suffice to establish the existence of a conspiracy between the applicant and the co-accused in illicit trafficking of psychotropic substances nor is there any document placed on the record by the Narcotics Control Bureau during the course of consideration of the present bail application to bring forth the transportation of any narcotic or psychotropic substance from the applicant to the co-accused persons through K.K. Pharma to Vinay Pharmaceuticals nor has the Narcotics Control Bureau placed on record any document to show the connection of the applicant with K.K. Pharma Solutions through whom allegedly the psychotropic substances were sent to Vinay Pharmaceuticals i.e. to the co-accused Manish Mohan. That there were monetary transactions between the coaccused Pulkit Kumar and the applicant, per se, also do not indicate that the said monetary transaction was in relation to any illicit trafficking of narcotic or psychotropic substances.”

10. Thus it was argued the nature of offence in the present case is only corroborative in nature and without any substantive evidence on record, the accused passes the test of Section 37 NDPS Act and hence the bail be granted. It is further stated one year has elapsed when an earlier order was passed in Sachin Makade‟s case and the trial has now begin and the witnesses of recovery against the present petitioners have since been examined as even admitted by the prosecution, hence, it is argued the petitioners are entitled to bail.

11. In Nitish Adhikary @ Bapan vs. The State of West Bengal in SLP (Crl.) 5769/2022 decided on 01.08.2022, the Court held as under: “The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, registered at Police Station Bongaon, West Bengal. During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents. Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

12. In Shariful Islam @ Sharif vs. The State of West Bengal in SLP (Crl.) 4173/2022 decided on 04.008.2022, the Court held:

“2. Taking into consideration the fact that the petitioner is reported to be in custody since 27-1-2021 and has suffered incarceration for over 1 year 6 months and there being no likelihood of completion of trial in the near future, which fact cannot be controverted by the learned counsel appearing for the State, we are inclined to grant him bail. 3. The petitioner is, therefore, directed to be released on bail, subject to such terms and conditions which the concerned Trial Court may deem fit and find appropriate to impose upon him.”

13. Further in Amit Singh Moni vs. State of Himachal Pradesh in CRL.A.668/2020 decided on 12.10.2020, the Court held: “According to the case of the prosecution, in a vehicle occupied by five persons including the appellant, contraband material (“Charas”) weighing 3285 grams was found concealed behind the panel of the front left side door of the vehicle. It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was examined in February 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody. Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. We order accordingly.”

14. Considering the above facts and circumstances of the case; petitioners being in custody since 12.02.2020; condition per earlier bail order dated 29.11.2021 (BA No.3487/2020) being fulfilled; further considering the law discussed above, both the petitioners are admitted to bail on their executing a personal bond of Rs.1.00 Lac each with one local surety each of the like amount to the satisfaction of the learned Trial Court/Duty MM. The petitioner are also directed to provide their contact number/address to the IO/SHO concerned as also they shall keep open their location application in their mobile at all time. The petitioners shall not leave the country without due permission of the learned Trial Court

15. The petitions are disposed of in above terms. Pending application, if any, also stands disposed of.

16. Nothing opined herein above shall be treated as an opinion on merits of the case.

17. Copy of this order be sent electronically to the learned Trial Court / Jail Superintendent for information and compliance.

YOGESH KHANNA, J. DECEMBER 08, 2022

Sachin Makade v. Narcotics Control Bureau, New Delhi

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