Johri v. State (NCT of Delhi)

1. The present application is filed under section 439 read with section 482 Cr.P.C. for seeking regular bail on behalf of the petitioner in FIR No.0038/2016 registered under sections 21/29/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985( BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 2 hereinafter referred to as “NDPS Act”) at P.S Special Cell (SB) Delhi.

2. The perusal of FIR bearing no.0038/2016 reflects that SI Sandeep Kumar received a secret information on 23.06.2016 at about 06:05 P.M. from secret informer that two persons, namely, Ganesh Haldar and Manik Biswas who are resident of West Bengal and indulged in the supply of Heroin from West Bengal to Delhi would come to Delhi near Gokulpuri flyover from 07:30 P.M. to 08:30 P.M. to deliver large quantity of Heroin to Johri. The secret information was written in Roznamcha vide DD No. 21 and thereafter a raiding party was prepared on the direction of senior officers. The raiding party proceeded towards the Gokulpuri flyover in a vehicle alongwith necessary equipments and secret informer. The public persons were requested to join the raiding party, but they refused to join raiding party after disclosing their difficulties. At about 07:45 P.M. two persons came from the side of Seelampur and stood near Gokulpuri flyover. The secret informer identified them as Ganesh Haldhar and Manik Bishwas and thereafter another person also came within 10 minutes and started to talk with Ganesh Haldhar and Manik Bishwas BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 3 and said person was identified as Johri by the secret informer. At about 08:00 P.M. Ganesh Haldhar and Manik Bishwas handed over one plastic bag to the petitioner. The raiding party apprehended all the three persons. The members of the raiding party also introduced themselves to them and notice under section 50 of NDPS Act was also given to them. None from the public had agreed to join the proceedings after apprehension of Ganesh Haldhar, Manik Bishwas and Johri. Johri was found in possession of 2 kgs. of Heroin while Ganesh Haldhar and Manik Bishwas were found in possession of 1 kg. of Heroin separately. The rukka was prepared and sent to the police station for registration of FIR under sections 21/29/61/85 of NDPS Act and thereafter the present FIR was got registered. The petitioner during the investigation made the disclosure that he had received 2 kg. Heroin from Ganesh Haldhar. After completion of investigation, the charge-sheet was filed for the offences punishable under sections 21 and 29 of NDPS Act.

3. The accused Johri (hereinafter referred to as “the petitioner”) filed present application wherein it is stated that the petitioner filed a bail application which was dismissed vide order dated 20.09.2021 BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 4 passed by the Session Court. The petitioner also filed a bail application before the High Court of Delhi bearing Bail Application no.3826/2021 titled as Johri V. State which was dismissed by the Coordinate Bench of this Court vide order dated 15.12.2021.

4. The petitioner also filed SLP (Crl.) bearing no.2065/2022 before the Hon’ble Supreme Court to impugn the order dated 15.12.2021 passed by the High Court of Delhi. The Supreme Court vide order dated 04.04.2022 observed that the petitioner has suffered incarceration for a period of five years and nine months and the trial court is directed to expedite the trial and to conclude the same in accordance with law within a period of four months from the date of receipt/production of a copy of the order. The liberty was also given to the petitioner if the trial is not concluded within the stipulated time then he shall be at liberty to file an application for grant of bail.

5. The trial could not be concluded as directed by the Hon’ble Supreme Court and thereafter the petitioner filed another bail application for grant of bail which was dismissed vide order dated 22.08.2022 passed by the Court of Sh. Ajay Kumar Jain, (ASJ, BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 5 Special Judge) NDPS, New Delhi. The relevant portion of the order dated 22.08.2022 is reproduced as under:- It is settled law while considering the bail, the court has not to appreciate the probative value of material on record and only has to see whether the prima facie case exists. In view of the mandate of above judgments, the denial of bail is a rule and grant is exception. The reasonable grounds required for grant of bail are more than prima facie grounds. In this case, there is a recovery of commercial quantity of contraband from the present accused who is found to be the kingpin of the syndicate. The mobile phone of accused persons were also on interception and the voice calls got matched. The material witnesses have been examined. At this stage, it cannot be inferred that reasonable grounds are made out to release the accused on bail. Though there is a direction from Hon'ble Supreme Court to conclude the trial within four months however the matter has been expedited and statements of material witnesses have been recorded. There is recovery of commercial quantity of contraband and at this stage, it cannot be held that there is no prima facie case against the present accused. The reasonable grounds required for bail are more than prima facie grounds which are conspicuously missing in present case. Apex Court in case titled Union of India Vs. Prateek Shukla, Crl. A. No. 284/2021 dated 08.03.2021 have categorically held that provisions of section 37 NDPS Act to be applied strictly while deciding the case for grant of bail. Apex Court in another judgment titled State Vs. Lokesh Chadha Crl. A No. 257/2021 dated 02.03.2021 BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 6 observed that the judgment of State of Kerala Vs. Rajesh is to be followed while deciding bail. There is recovery of commercial quantity of contraband, thus there is definite embargo u/s 37 NDPS Act and court must be satisfied that there are reasonable grounds for believing that accused is not guilty of the offences with which one is charged and further that he is not likely to commit any offence while on bail. It cannot be inferred at this stage there are reasonable ground to believe that accused is not guilty of the offence and is not likely to commit any offence while on bail. Mere incarceration in jail is no ground to release the accused on bail. In present facts and circumstances, I do not find any ground to release the petitioner/accused Johri on bail. Hence, the present application is dismissed. Application disposed of accordingly.

6. The petitioner is seeking bail on the grounds that the trial has not been concluded within the stipulated time as per directions given by the Hon’ble Supreme Court vide order dated 04.04.2022 passed in SLP (Crl.) no. 2065/2022. The Investigating Officer was not authorised by the Gazetted Officer or a Magistrate from section 41(2) of NDPS Act and the strict compliance of the section 41(2) of NDPS Act was not followed. There was no specific written authorisation given by the concerned ACP i.e. the Gazetted Officer and the contents as mentioned in the secret information are mechanical in nature. There is a discrepancy in the notice under section 50 of NDPS Act besides other grounds. BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 7

7. The Additional Standing Counsel for the respondent/State argued on the basis of Status Report and stated that 2 kgs. of Heroin was recovered from the possession of the petitioner at the spot and mobile phone bearing no.9760353489 and 9760780035 which was stated to be used for drug trafficking were also recovered from the possession of the petitioner. The FSL results collected during investigation are also connecting to the petitioner with the alleged offences. It is prayed that the bail application be dismissed.

8. The counsel for the petitioner in written submissions stated that the petitioner is in the custody since 26.06.2016 and the trial was not completed within the purview of four months in pursuance of the directions given by the Hon’ble Supreme Court. The counsel for the petitioner placed reliance on the decision delivered by the Hon’ble Supreme Court in case titled as Supreme Court Legal Aid committee representing undertrial prisoners V Union of India & Ors. (1994) 6 SCC 731

9. The counsel for the petitioner primarily argued that the petitioner is entitled to the bail in view of the directions given by the Hon’ble Supreme Court in Supreme Court Legal Aid committee representing undertrial prisoners V Union of India & Ors. (1994) 6 SCC 731 and judgments passed by the another Coordinate Bench of this Court titled as Jagannath V State (NCT of Delhi) in Bail Application no.1182/2022 decided on 07.09.2022 and Tarun Kumar Maurya V State of NCT, Delhi in Bail Application no.1249/2022 decided on 27.09.2022. The counsel for the petitioner further stated that the petitioner has spent more than six years in the jail after his BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 8 arrest and the charge-sheet has already been filed as such the petitioner is entitled for grant of bail.

10. It was observed and directed by the Hon’ble Supreme Court in the judgment titled as Supreme Court Legal Aid committee representing undertrial prisoners V Union of India & Ors. (1994) 6 SCC 731 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 bail amount 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 BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 9 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 3 1 and 3 1 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; BAIL APPLN. 2630/2022 JOHRI V STATE(NCT OF DELHI) Page 10

(iii) the benefit of the direction in clauses