Full Text
MD IRSHAD ..... Petitioner
Through: Mr. Rahul Sharma, Mr. Prabhash, Ms. Abhilasha Sehrawat, Mr. Kartik Malhotra, Mr. Akshat Maheshwari, Mr. Rishabh Sharma, Ms. Nishtha Khurana, Advocates
Through: Mr. Hirein Sharma, Ld. APP
SI Arvind Kumar, Spl. Staff, East District, Delhi
JUDGMENT
1. This Application has been preferred by the applicant under section 438 of the Cr.P.C. seeking grant of anticipatory bail in FIR No. 234/2022 registered at PS Kalyan Puri u/s 21 NDPS Act. The anticipatory bail of the applicant has been dismissed by the Special Judge, NDPS, East, Karkardooma Courts, Delhi on 21.02.2022.
2. The brief facts of the case are as under: a) On 30.01.2022, ASI Pramod Singh, posted at Special Staff East District, received an information that a person, who procures the contraband „smack‟ from Badaun/Bareilly, Uttar Pradesh and 2022:DHC:1723 supplies it in parts of Delhi, would come near The Mother Mary Public School, Ghazipur Road, in the area of PS Kalyan Puri. The information was shared with other officers who decided to conduct a raid. b) The team laid a trap on Ghazipur Road, near Gate of the Mother Mary Public School, Kalyan Puri, Delhi and at about 9.10pm a man a bag on his back emerged on the spot who was pointed out by the informer, who later identified him as Mohd. Akleem. Mohd. Akleem was waiting at the gate when he was nabbed by the staff. On enquiry he stated his name and address as Mohd. Akleem S/o Shakil Ahmed R/o Vill-Bhasundra. Notice under section 50 Narcotic Drugs Psychotropic Substances Act (hereinafter „NDPS Act‟) were served to all apprehended persons. c) Interrogation was conducted of Mohd. Akleem after his arrest and he disclosed that he used to supply „smack‟ to Applicant Irshad@Neta and that the Applicant is the resident of the same village as Mohd. Akleem. It is on this statement and during the course of the investigation that a notice u/s 67 NDPS Act was served to the Applicant, Md. Irshad to join the investigation. d) The Special Judge, NDPS, East Karkardooma Courts dismissed the anticipatory bail application of the Applicant on 21.02.2022 observing the following: “Keeping in view the fact that the recovery of smack from Mohd. Akleem is 300 grams which is commercial quantity, bar under section 37 of the NDPC Act regarding bail is attracted. Name of the applicant/accused Mohd. Irshad has been disclosed by Mohd. Akleem. Investigation of the case is pending. Source and supply lines of the recovered contraband are to be identified. In these facts and circumstances, this is not a fit case for grant of pre-arrest bail. Accordingly, the application for grant of pre-arrest bail of applicant/accused Mohd. Irshad is dismissed.”
3. The Applicant had filed this application apprehending arrest in a false case of the complainant filed against the Applicant. He further stated that he is a person of repute and enjoys an enviable reputation among the society and has been falsely implicated.
4. The Ld. Counsel for the Applicant has relied upon the following case laws for supporting his application: a) On the Supreme Court judgment in Crl. Appl. No. 949/2018 dated 31.07.2018, Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence, wherein the court has observed the following:
d) The Ld. Counsel for the Applicant also relied upon the judgment of High Court of Allahabad, Rajveer Singh v. Union of India [MANU/UP/1517/2021] and judgments of High Court of Punjab and Haryana at Chandigarh in Amrik Singh v. State of Punjab, CRM-M No. 48484/2017 dated 15.01.2018; Laddi Singh @ Charna v. State of Punjab, CM-M No. 1607/2019, dated 07.02.2019; and Satish v. State of Haryana, CRM-M NO. 3240/2017 dated 17.02.2017.
5. Additionally, Mr. Rahul Sharma, Ld. Counsel for the Applicant states he is not the seller nor was he caught with the drugs. The applicant has no past antecedent and the offence as alleged, would be his first offence.
6. Opposing the bail, the Ld. APP, Mr. Hirein Sharma has placed reliance on Section 29 of the NDPS Act, which according to him is invoked in the present case. Section 29 of the NDPS Act states the following:
7. He states that the applicant has been named by the arrested accused Md. Akleem, whose confession discloses a link between the accused and the applicant, where Md. Akleem is stated to have supplied Smack to the Applicant. The Status Report discloses that the Applicant and the arrested accused belong to the same village. Furthermore, the report states that the sample exhibits were drawn from the illegal smack and on 17.02.2022, the same has been sent to FSL, Rohini, Delhi and final opinion/result of the same is awaited.
8. Additionally, the Status Report opposes the anticipatory bail on the ground that, “Activities of such drug cartels are highly alarming and undesirable for the society at large as they are spreading the poison of drugs in the society leading to the serious health hazards to the public” and therefore, the Applicant/petitioner is to be interrogated at length to unearth the chain of supply of smack particularly in Delhi/NCR.
9. I have heard the Ld. Counsels for the Applicant and the State. ANALYSIS:-
10. Any application for bail or anticipatory bail for offences under the NDPS Act would have to be met with the rigours of section 37 of the NDPS Act.
11. In my analysis, this court will have to determine whether the Applicant meets the pre-conditions of Section 37 of the NDPS Act for grant of anticipatory bail.
12. The Supreme Court in Union of India v. Rattan Mallik[1] while considering Section 37 of the NDPS Act for grant of bail, has observed the following: “12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz.
(i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and
(ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on “reasonable grounds”.
13. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798: (2007) 3 SCC (Cri) 505] ). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.”
13. In the present case, it is important to note that except the confessional statement of the arrested accused, Md. Akleem, there is no other evidence. The gist of the judgments relied upon by the Applicant state as under: a) It has been held in Surinder Kumar Khanna (Supra) that confessional statement cannot be the only substantive evidence and it is only to assist the court. b) In Kishan Singh (Supra), it is observed that to make out a case against the applicant/petitioner the prosecutor must „adduce some independent, corroborative or affirmative legal evidence’. c) In Abdul Mohammed Shaikh (Supra), it was concluded that confessional statement can be used as corroborative statement when there are other evidences available.
14. Keeping the above judgements in mind, there is no other independent, corroborative or affirmative legal evidence against the Applicant except the confessional statement of the arrested accused, Md. Akleem. Additionally, the applicant does not have any past antecedents. This court has no reason to believe, prima facie, that the accused is part of a larger conspiracy.
15. This court is also of the view that for the reasons stated above there are reasonable grounds that the accused is not guilty of the offence as alleged. Further, I am also of the view that the applicant is not likely to commit an offence under the Act while on bail. Additionally, the APP has been given an opportunity to oppose the application for bail.
16. This court, therefore, in view of hereinabove, is inclined to grant anticipatory bail to the Applicant herein, subject to the following conditions: A) The Applicant in the event of his arrest in FIR no. 234/2022 registered at Kalyan Puri dated 31.01.2022 shall be released on bail subject to furnishing a personal bond in the sum of Rs. 20,000/- to the satisfaction of the Investigating Officer concerned. B) The Applicant is directed to deposit his passport with the Investigating Officer. C) The Applicant shall cooperate and join investigation as and when directed by the Investigating Officer. D) The Memo of Parties show that the Applicant is residing at R/o Village Bhasundhra, Post Rijola, Buduan, Uttar Pradesh – 243641. In case of any change of address, the Applicant is directed to inform the same to the Investigating Officer. E) The Applicant will not cause hindrance to the investigation in the present case. F) The Applicant shall not, directly, or indirectly, tamper with evidence or try to influence the witnesses in any manner.
17. It is to be noted that observations made in this order are only for grant of anticipatory bail and not on merits of this case.
18. The application stands disposed off along with all pending applications, if any.
JASMEET SINGH, J MAY 05, 2022 / „ms‟