Dinesh Kumar v. State of NCT of Delhi

1. Separate Bail applications 2543/2021 and 828/2022 have been preferred on behalf of the petitioners Dinesh Kumar and Vinod Kumar Pandey @ Anand Panday under Section 439 Cr.P.C. for grant of regular bail in FIR No. 202/2019, under Section 471/474/482 IPC and Section 20, 25 & 29 of NDPS Act, registered at PS Crime Branch, Rohini North.

2. In brief, as per the case of prosecution, on 11.07.2019, acting upon a secret information regarding supply of contraband marijuana i.e. Ganja in Delhi, a trap was laid near Gate No. 1, Bawana Industrial Area. The person who got down from driver side of the truck bearing No. NL-07A-7611 was identified as Dinesh and the one who got down from the other side was identified as Mohd. Kazim @ Laddan by the secret informer and were apprehended by the raiding party. After completion of legal formalities, formal search of the truck was made and 16 bags of contraband marijuana i.e. Ganja were recovered from the said truck, which weighed 800 Kgs. Accordingly, FIR No. 202/2019, under Section 20/25/29 NDPS Act was registered and both the accused Dinesh Kumar and Mohd. Kazim @ Laddan were arrested at the spot.

3. During investigation, Mohd. Kazim @ Laddan disclosed that the recovered Ganja belonged to one Salaam Mansoori, R/o Ranhola, Delhi and Anwar S/o Karim Khan. Further, petitioner Dinesh Kumar disclosed that the alleged truck belonged to petitioner Vinod Kumar Pandey, R/o Mirzapur, U.P. Later on, accused Salaam Mansoori was also arrested on 19.09.2019 in the present FIR. The Chassis number of the truck was found to be tampered/erased and the documents of the truck were found to be fake. Accordingly, sections 471/474/482 IPC were invoked. Vinod Kumar Pandey was initially declared PO on 06.02.2020. Subsequently, it was revealed during investigation that the petitioner/accused Vinod Kumar Pandey was in J.C. in District Jail Mirzapur, U.P. in another case and was formally arrested in the present FIR on 24.02.2021.

4. During investigation, it was also revealed from the owner of the truck that the documents regarding sale and purchase were executed in favour of Vinod Kumar Pandey, who tampered with the registration number, chassis number and engine number to hide its identity. Besides above, on the basis of CDR analysis, mobile numbers 7233873693 & 8765237235 used by Vinod Kumar Pandey were found in constant touch with Anwar Ali (Mobile No.6371414527 & 8480491834), who was the main supplier of the contraband from Orissa and has been declared Proclaimed Offender in the present FIR. Further these numbers were also found in touch with mobile numbers of petitioner Dinesh Kumar i.e. 9696670170 & 6305755320.

5. Learned counsel for petitioner Vinod Kumar Pandey submits that the accused has been falsely implicated and made following submissions for consideration of bail: i. That mobile numbers 7233873693 & 8765237235 were registered in the name of one Sandeep and Satanoo Yadav and no evidence has been led to indicate in case the aforesaid numbers were being used by petitioner Vinod Kumar Pandey. Reliance is further placed upon Shravan Kumar vs. State of NCT of Delhi, Bail Application No. 175/2018, decided by Hon’ble Mr. Justice S.P. Garg, vide order dated 12.03.2018. It is urged that Call Detail Records may not be enough to deny the benefit of bail to the petitioner. ii. The ownership of the truck in question from which the contraband was recovered, has been further denied on behalf of the petitioner. It is pointed out that the alleged documents of sale were never notarized in the presence of petitioner Vinod Kumar Pandey even as per the statement of Notary Public. Further, the document is stated to have been executed on 04.06.2019, though the attestation as per the statement of the Notary Public, has been made on 14.06.2019. iii. The case of the petitioner is claimed to be on parity with Salaam Mansoori, who is stated to have been released on bail by the learned Trial Court vide order dated 19.12.2020. It is submitted that no adverse inference can be taken against the accused only on the basis of alleged disclosure statement of co-accused. Reliance is further placed upon Amit Ranjan vs. Narcotics Control Bureau, Delhi, in BAIL APPLN. No. 1189/2020 decided by Hon’ble Ms. Justice Anu Malhotra on 23rd May

2022.

6. Learned counsel for petitioner Dinesh Kumar assails the case of the prosecution on the following grounds: i. That the petitioner was merely an employee of coaccused/petitioner Vinod Kumar Pandey and was unaware as to the contents of the bags which were loaded beneath the cashew husk. It is urged that no conscious possession can be attributed to the petitioner as he was completely unaware of the contents contained in the alleged bags. ii. It is further pointed out that the petitioner has clean past antecedents and the ownership of the truck was unknown to him, though he was employed by co-accused Vinod Kumar Pandey as a driver. iii. That as per the invoice, which was handed over to the driver, the contents were reflected as cashew husk/peels. iv. That the prosecution has failed to bring out nexus between the petitioner with co-accused. Petitioner is further stated to be in custody since 07.03.2019. Reliance is also placed upon Avtar Singh & Ors. vs. State of Punjab, (2002) 7 SCC 419, Premnarayan Prabhulal Mina & Anr. vs. State of Maharashtra, 2008 SCC OnLine Bom. 1938 in support of the contentions.

7. On the other hand, the bail applications have been vehemently opposed by learned APP for the State and it is submitted: i. That no presumption can be drawn that the driver of the truck was unaware as to the contents being carried in the truck. Further, the driver was apprehended at the spot at the time of recovery of the contraband. ii. That the CDR analysis indicates connectivity of the petitioner Dinesh Kumar on mobile numbers 7233873693 and 8765237235 being used by him with petitioner Vinod Kumar Pandey from his mobile numbers 9696670170 & 6305755320. iii. That both the mobile numbers allegedly being used by Vinod Kumar Pandey, though in the name of one Sandeep and Satanoo Yadav, were issued in Mirzapur and similar modus operandi has been used by petitioner Vinod Kumar Pandey by forging the documents in respect of the carriers/conveyance carrying the contraband in other FIRs in which his involvement has been found. It is also urged that so far as the documents of ownership of the truck are concerned, the verification was duly made from the last owner namely Shashank Giri, who sold the truck to the petitioner which was initially registered on 07.03.2009 and the registration was valid upto 07.03.2020. As such the amount of sale consideration is stated to have been by cash on nominal consideration. iv. It is further submitted that the petitioner Vinod Kumar Pandey is involved in FIR No. 39/2015, under Section 419/420/34 IPC, registered at PS Madihan, District Mirzapur, U.P. and even in the aforesaid case, a similar modus operandi was adopted whereby the ownership of the alleged vehicle was disputed on behalf of Vinod Kumar Pandey. It is urged that the petitioner is habitual offender and similar modus operandi is being adopted, in order to escape the rigors of law. v. It is pointed out that CDR analysis reflects that the petitioner Vinod Kumar Pandey was in constant touch with Anwar Ali, who is main supplier of the contraband from Odisha and has been declared proclaimed offender in the present case.

8. I have given considered thought to the contentions raised. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are:-

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(ii) There must exist „reasonable grounds to believe‟ that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. Based upon the precedents, the test which this Court is required to apply while granting bail is whether there are reasonable grounds to believe that accused is not guilty of such an offence and whether he is likely to commit any offence while on bail.

9. The knowledge of the possession of contraband has to be gleaned from the facts and circumstances of a case. This Court is cautious of the fact that physical possession means physical possession with animus, exercise of dominion and control as a result of concealment or personal knowledge as to existence of the contraband and the intention based on this knowledge. In order to appreciate the contentions raised by the learned counsel for the petitioner, it is important to refer to the observations of the Hon’ble Supreme Court in Madan Lal and Anr. v. State of Himachal Pradesh, (2003) 7 SCC 465, with reference to the concept of possession as occurring in Section 20 to 22 of NDPS Act.

10. It is pertinent to note that possession of the contraband in the present case is from a private truck which was driven by the petitioner (Dinesh Kumar), which co-accused Mohd. Kazim @ Laddan was an occupant therein. The petitioners were apparently arrested on the basis of secret information and recovery of 800 Kgs. Ganja was effected in their presence. In the facts and circumstances, at this stage, it is difficult to presume that the petitioner Dinesh who had been driving truck with contraband, was unaware of the concealment of contraband in the bags, since the trucks are generally loaded in the presence of the driver. The defence of the accused that he was not in conscious possession, can be appreciated after the evidence is led on record.

11. So far as accused Vinod Kumar Pandey is concerned, he has been linked with contraband on the basis of ownership of the truck as well as on the basis of Call Detail Records through mobile numbers 7233873693 & 8765237235 with Vinod Kumar Pandey and other co-accused. It may be observed that merely because the aforesaid mobile numbers were registered in the name of one Sandeep and Satanoo Yadav, do not lead to an inference that the same were not used by Vinod Kumar Pandey.