Shailender v. State NCT of Delhi

1. This is an application under Section 439 Cr.P.C. for grant of bail in FIR No.0007/2021 under Section 21/61/85 of NDPS Act registered at PS: Hauz Qazi, Delhi.

2. In brief, as per the case of the prosecution, on 13.01.2021, a secret information was received in the office of Narcotics Squad, Central District, Kamla Market, Delhi by SI Ravinder that one Shailender is involved in the supply of heroin and would come to supply huge quantity of heroin near Deen Dayal Upadhyaya Market Gate between 11:30PM & 12:30AM and in case raid is conducted, he can be apprehended. The said information was conveyed by SI Ravinder to senior officers and was reduced into writing vide DD No.11 dated 13.01.2021. As per the directions of the senior officers, a raiding party was constituted and proceeded to the place of information. About 11:55PM, the petitioner was apprehended. Notice under Section 50 NDPS Act was served upon the petitioner and search was conducted in presence of ACP (Operations). During search, a black coloured bag containing 24 polythene packets of pink colour substance were recovered from the possession of the petitioner. The same were checked with the help of Testing Kit and found to be heroin. The packets weighed 4 Kgs. 800 grams Acordingly, FIR No.0007/2021 under Section 21 of NDPS Act was registered at PS: Hauz Qazi. During the course of investigation, two samples were taken from the recovered substance by SDM, Karol Bagh as per proceedings under Section 52A NDPS Act. Further, as per FSL report, the samples were found to contain Diacetylmorphine (13.8%), monoacetylmorphine and trimethoprim.

3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated and was lifted from Rithala Naala nearby Rithala Metro Stationabout 5:00-6:00 PM on 13.01.2021 by the raiding team. It is further urged that in view of the same, the Call Detail Records were requested to be preserved and analysed and an application in this regard had been moved before the learned Trial Court under Section 91 of NDPS Act on behalf of the petitioner. It is also urged that upon inquiry by the senior officers, investigation of the case was transferred from District Narcotic Cell to PS: Hauz Qazi. The sampling procedure adopted by the prosecuting agency is further stated to have vitiated the entire proceedings. It is further contended that the contents of 24 packets allegedly recovered were put into one packet and thereupon the samples were drawn against the mandate of observations of the Hon’ble High Court of Delhi in Basant Rai vs. State, 2012 (3) JCC 138 (Narcotics), Crl. Appeal No.909 of 2005 passed on 02.07.2012. It is also urged that at the best, only a case for recovery of 200 grams could be made out in view of improper sampling procedure, which does not fall within the ‘commercial quantity’. Reliance is further placed upon the judgments passed in Gaunter Edwin Kircher vs. State of Goa, Scretariat, Panji, Goa, 1993(2) SCR 337; Javed A. Bhat vs. UOI, 2007 Crl.L.J. 3145; Ahmed Hassan Muhammed vs. The Customs, 2021(2) JCC 1187 and Pardeep Kumar Gupta vs. State of Delhi, BAIL APPLN 2865/2020 decided by High Court of Delhi on 15.01.2021.

4. On the other hand, the application has been vehemently opposed by the learned APP for the State. It is submitted that the contentions raised by learned counsel for the petitioner disputing the conduct of raid and recovery is baseless. It is further submitted that the presence of SI Ravinder at Rithala was in pursuance of investigation of another FIR No.192/19 under Section 20/61/85 of NDPS Act registered at PS: Kamla Market, Delhi. It is pointed out that departure of SI Ravinder in the aforesaid FIR No.192/19 was duly recorded vide DD No.06 dated 13.01.2021 and arrival was recorded vide DD No.10 dated 13.01.2021 about 8:30PM. The claim of the petitioner that he was lifted prior to conduct of raid, as such, is vehemently opposed. It is further submitted that conduct of proceedings in respect of receipt of secret information and apprehension of petitioner is corroborated by DD No.11 dated 13.01.2021 as well as DD No.12 regarding departure of raiding party at 10:55PM, in the proceedings in the present case. It is also pointed out that petitioner was earlier involved in excise case bearing FIR No.625/2002 under Section 61/1/14 Excise Act registered at PS: Sultan Puri, Delhi. So far as the recovery and sampling of the contraband is concerned, it is submitted that each of the packets was tested with Field Testing Kit, which on the basis of physical properties was found to be heroin. It is submitted that merely because the contents of 24 packets were mixed thereafter for the purpose of obtaining the sample, it cannot be presumed that entire proceedings stand vitiated. It is urged that even in the order passed by the learned Trial Court dated 07.09.2021, it has been observed as under:- “………..Even if for the sake of arguments, it is presumed that accused/applicant is liable for possession of one packet only, even then accused/applicant is not entitled to bail as a matter of right. 200 grams of heroin is more than small quantity but less than commercial quantity. The facts and circumstances of the present case are very different from the facts and circumstances of the cases upon which reliance has been placed by Ld. Counsel for accused/applicant. The other contentions raised by Ld. Counsel for accused/applicant are a matter of trial…….” Reliance is further placed upon the judgments/orders passed in Bipin Bihari Lenka vs Narcotic Control Bureau, BAIL APPLN.3291/2021 dated 25.04.2022; Anthony Umeh vs. State, BAIL APPLN.851/2021 dated 06.07.2021; Naved Ummer Sheikh vs. Narcotic Control Bureau, BAIL APPLN.3248/2021 dated 23.11.2021 and Bobby Collin vs. Narcotic Control Bureau, BAIL APPLN.812/2021 dated 19.04.2021.

5. I have given considered though to the contentions raised. A contention has been raised by learned counsel for the petitioner that the petitioner has been falsely implicated in this case, after being lifted prior to the alleged recovery and reliance is placed upon Call Detail Records. At the outset, it may be observed that the defence taken by accused/petitioner needs to be duly established during the course of trial. At this stage, the stand taken on behalf of the prosecution that IO was present in connection with investigation of another FIR No.192/19, P.S. Kamla Market supported with relevant DD entries, cannot be ignored.

6. In order to appreciate the contentions raised by learned counsel for the petitioner challenging the sampling procedure adopted by the Investigating Agency, the authorities relied upon may be briefly referred.

(i) In Gaunter Edwin Kircher vs. State of Goa, Secretariat, Panji,

Goa (supra), two cylindrical pieces of charas weighing 7 and 5 grams respectively were seized from the appellant by a police patrolling party and on chemical analysis of one of the pieces, it was found that the substance found was charas. The conviction made by learned Trial Court was upheld in appeal by the High Court. In an appeal before the Hon’ble Supreme Court, it was observed that the courts below erred in holding that the accused was found in possession of 12 grams of charas since only a small quantity less than 5 grams had been sent for analysis and the remaining part of the substance, which had not been sent for analysis cannot be held to be charas and, therefore, the quantity proved to have been in the possession of accused would be small quantity as provided under Section 27 of the Act and the accused should have been given the benefit of that Section. It may be observed that the aforesaid case is distinguishable on facts since two separate cylindrical pieces of charas weighing 7 and 5 grams respectively had been recovered and only one of the pieces had been forwarded for forensic examination and, as such, it could not be held that the other piece recovered from the possession of accused therein was also charas. The quantity recovered, as such, was proved to be less than 5 grams which fell within the meaning of small quantity for the purpose of Section 27 of the Act. It may be observed that the aforesaid findings had been given after the conclusion of trial at the stage of appeal.

(ii) In Javed A Bhat vs. Union of India, the accused was charged for being found in possession of 380 grams of hashish/charas, 85 grams of ganja, 37 grams of brown sugar/heroin, 8.[4] grams of ecstasy tablets and 6 grams of cocaine. Arguments in the aforesaid case were confined on the point of sentence in relation to possession of 380 grams hashish under Section 20(b)(ii)(B) of NDPS Act. The said charas/hashish was found in the form of cigars and flat substances but the panchnama nor the evidence reflected as to how many such substances were in the form of cigars or flats in the transparent polythene which when weighed was found to be 380 grams. Thereafter, two representative samples of 50 grams each were taken from the said packet and put into two separate polythene bags and sent for analysis. Further, as per evidence therein on record it was observed that the polythene bag sent for examination contained a dark brown substance in the form of cylindrical sticks and flat squarish pieces and the total weight of the substance along with the polythene bag was found to be 50 grams. The witness therein took the representative sample and after analysis came to conclusion that the substance analysed by him contained charas. It was contended therein that since the prosecution did not send the entire quantity i.e. 380 grams of charas for analysis, the remaining pieces in the form of cigars or flats cannot be presumed that they would contain charas or hasish. Reliance therein was placed upon Gaunter Edwin Kircher (supra) and it was held by the High Court that since the prosecution did not send all the pieces either in the form of cigars or flats for analysis but remains satisfied only by sending some of such pieces weighing about 50 grams and, therefore, applying the principles laid by the Apex Court, it was concluded that accused was found with only 50 grams of charas/hashish and not the entire quantity of 380 grams as contended by the prosecution and on failure of the prosecution to send all the cigars or flats found with the accused. I am of the considered opinion that the aforesaid case is also distinguishable wherein the quantity recovered was dissimilar i.e. both in the form of cigars or flats and as such the presumption could not arise that the cigars also contained charas/hashish.

(iii) In Basant Rai vs. State (supra), the appellant was caught carrying 3.[5] kgs. of charas on 24.09.2003 in a polythene bag which contained similar polythene bags having black coloured substance. Accordingly, two samples of 25 grams each were made after breaking charas from each of the eight slaps which was sent to FSL and found to be charas. It was therein contended that the sample sent to FSL is not representative of the entire quantity of allegedly recovered substance to infer that the quantity of 3.[5] kgs. of charas was recovered. Reliance therein was placed upon Gaunter Edwin Kircher vs. State of Goa and Javed A Bhat vs. Union of India (supra). In para 25 of the judgment it was observed by Hon’ble Mr. Justice Suresh Kait as under:-

(iv) In Ahmed Hassan Muhammed vs. The Customs (supra), an intelligence had been gathered that the consignment imported vide bill of entry was containing contraband substance and had been put under preventive check. The consignment-wise goods as per MAWBs were found to be packed in 30 cartons, with each consignment containing 10 cartons per MAWBs. The cartons were then opened and examined one by one MAWB wise. The cartons marked Number A-1 to A-10, pertaining to MAWB Number 07133613414 were then examined. It was noticed that one carton was found sealed using lac. All the cartons bearing numbers A-1 to A-10 were then opened and examined. The said one carton bearing lac seal was found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves and one plastic package out of these 10 plastic packages was found sealed with lac seal. It was observed by the examining officers that this could be on account of the fact that a certain quantity would have been taken out by FSSAI officials for testing purpose. All the other Nine cartons were opened and examined and were found to contain 10 plastic packages of same type of dry leaves suspected to be Dry Chat leaves. Allegedly, total 100 such plastic packages were found which were also numbered as A-1/1, A-1/2.....A-1/10 and A-2/1, A-2/2...A-2/10 and so on till A-10/1, A-10/2,.....A-10/10 respectively. The same were declared as Dry Chat in the MAWB whereas in the Bill of Entry Number 9786830 dated 25.01.2019 filed for the said consignment, the goods were declared as Green Tea. The Gross weight of the 10 cartons was taken on the electronic weighing machine and it was found to be 220.360 kgs. As the packaging in respect of the consignments covered under 10 cartons pertaining to the said MAWB were the same, in order to arrive at the net quantity of the suspected Dry Chat leaves, the contents of one carton were emptied and weight of the emptied carton taken which was found to be 1.740 kgs. Thereafter, the contents in one plastic package containing Dry Chat leaves were taken out and the emptied plastic package weighed which was found to be 0.070 kgs. The total weight of the packing material in respect of the said consignment covered under MAWB No. 07133613414 was found to be 24.400 kgs. and accordingly, the net weight of suspected Dry Chat leaves was found to be 195.960 kgs. Similar exercise was taken with respect to cartons marked B[1] to B10 and C[1] to C10 pertaining to other MAWBs. Thereafter representative samples in consignments covered in each MAWB were drawn and in total six representative samples were drawn. Further, for drawal of representative samples from each consignment pertaining to MAWB No.07133613414, the Inspector took small quantity of substance i.e. dry chat leaves from each of the packages containing dry chat leaves, mixed thoroughly to make the mixture homogenous and out of these two samples, representative sample each weighing 24 grams was taken which were individually kept in press locked plastic pouches. It was also contended that the bag containing dry leaves was tampered with by the investigating agency entrusted for investigation and that too without the knowledge of custom officials. Giving benefit with reference to the sampling procedure after making reference to Basant Rai vs. State (supra), petitioner/accused was given benefit of bail. The observations in para 18 & 19 may be reproduced:-