Full Text
HIGH COURT OF DELHI
RAFIQ.....Petitioner
Through: Mr. Rishi Malhotra, Advocate
Through: Ms. Neelam Sharma, APP for the State with SI Deepak Pandey, Crime Brach.
RAJNISH BHATNAGAR, J.
ORDER
1. By way of this order, I shall dispose of the present bail application filed under Section 439 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the petitioner for grant of regular bail in case FIR No. 151/2020 registered under Section 20/25 of the NDPS Act at P.S. Crime Branch.
2. Briefly stated, the allegations against the petitioner are that on the basis of a secret information received on 05.10.2020, a team was constituted by SI Sushil Kumar and raid was conducted at Village 2021:DHC:575 Mukhmelpur, Cut Mukhmelpur, Hiranki, Burari Pusta which resulted in the apprehension of two persons Israil & Rafiq (present petitioner) who were approaching Delhi in a Mahindra Pick UP bearing No. DL 1CX 6566. Notice U/s 50 of the NDPS Act was issued to both of them. Information regarding apprehension of the said persons was shared with ACP/SOS-II who reached at the spot and in his presence the search was carried out. During physical search of accused Rafiq @ Fikku (present petitioner), contraband (Charas) weighing 555 grams was recovered from his right pocket of Jeans paint while during the search of Israil contraband (charas) weighing 955 grams was recovered under his shirt which was wrapped by accused Israil with the help of a white cloth.
3. Accordingly, a case U/s 20/25 of the NDPS Act was registered and the petitioner alongwith the co-accused was arrested on 06.10.2020. During the course of investigating, according to the prosecution, the conspiracy to bring the contraband in Delhi NCR for selling was established and subsequently Section 29 NDPS Act was added. As per the case of the prosecution on further interrogation of the petitioner and his co-accused they disclosed that they used to bring the contraband by hiding in vegetables, which they carry in their vehicle.
4. The state has filed the status report. I have heard the Ld. counsel for the petitioner, Ld APP for the State and perused the status report filed by the state.
5. It is submitted by the Ld. counsel for the petitioner that the petitioner is 19 years old and 555 Gms. of Charas which is less than the commercial quantity is alleged to have been recovered, therefore, rigors of Section 37 of the NDPS Act would not be applicable. He further argued that the Ld. Trial Court has erroneously clubbed together the recoveries effected from the petitioner and his co-accused and came to the conclusion that the recovered quantity is more than commercial quantity and thus there was a bar of Section 37 of the NDPS Act. He further submitted that there are violations of mandatory provisions of Section 42 of the NDPS Act and he relied upon State of Rajasthan Vs. Jagraj Singh 2016 (11) SCC 687.
6. On the other hand, Ld. APP for the State has opposed the bail application by contending that the petitioner and his co-accused under a well hatched conspiracy have brought the contraband to Delhi and he further submitted that the co-accused Israil has criminal antecedents and FIR U/s 20 of the NDPS Act had been registered against him on 29.09.2018 and another FIR U/s 21 of the NDPS Act had been registered against him on 12.06.2019 and he is a habitual offender. He further submitted that co-accused Israil being a habitual offender knows how to manipulate things and for this reason he and his coaccused split the contraband into two so as to come out of the rigors of Section 37 NDPS Act and to ensure that the recovered quantity from each of them falls below the commercial quantity. He further submitted that as far as the question of violation of mandatory provision of Section 42 of the NDPS Act is concerned, the same is a matter of fact and needs to be proved during the trial. He further submitted that GD entry No. 0011A was recorded on the basis of the secret information which is due compliance of Section 42 of the Act.
7. Ld. APP for the State has relied upon “Deonandan Roy Vs. State” [2016 SCC OnLine Cal 2463] & “Dipak Kr. Roy @ Dipak Roy Vs. State” [2016 SCC OnLine Cal. 2464], “Abu Basar Baidya vs. State” [2016 SCC OnLine Cal 7333], “Rai Bahadur Seth Shreeram Durgaprasad Vs. Director of Enforcement” [AIR 1987 SC 1364], “Bhupindeer Singh @ Bhinda Vs. State of Punjab” [(2005) 1 RCR (Criminal) 168 (FB)] & “Madan Lal and another Vs. State of HP” [(2003) 7 SCC 465] to bring home the point that the recovery from each of the accused in the facts and circumstances of this case is not to be treated as an independent recovery. The learned APP strongly pleaded for rejection of bail application and relied upon the provisions of Sections 29 & 37 of the Act.
8. Section 29 of the NDPS Act reads as follows: “29. Punishment for abetment and criminal conspiracy.— (1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which— (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.”
9. Section 37 of the NDPS Act reads as follows: “37.Offences to be cognizable and non-bailable — (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 – (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless –
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit offence while on bail. (2) The limitation on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitationsunder the Code of Criminal Procedure, 1973, or any other law for the time being in force on grant of bail.”
10. Learned APP relied upon the judgment of the Supreme Court in Union of India v. Ram Samujh and Anr. 1999 (4) SCC 134 (SC) for the aforesaid proposition that the jurisdiction of the Court is circumscribed by the provisions of Section 37 of the said Act and an accused should not be released on bail during trial unless the mandatory conditions provided under Section 37, i.e., reasonable ground for believing that the accused is not guilty and that he is not likely to commit any offence on bail, are satisfied. The Supreme Court observed in paras 6 and 7 as under: “6. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.
7. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that accused is not guilty of such offence; and
(ii) that he is not likely to commit while on bail are satisfied.
XXX XXX XXX … The provisions for grant of bail to drug traffickers had been deliberately made more stringent as their activities undermine the basic fibre of the society. …”
11. In the instant case, GD entry No. 0011A was recorded on the basis of the secret information received. So, at the stage of bail factual matrix of the case cannot be looked into and the same would be seen during the course of trial.
12. The petitioner was arrested alongwith his co-accused, who is involved in two other cases of NDPS Act and no doubt he was carrying only 555 Gms. of Charas, which according to the counsel for the petitioner is less than the commercial quantity but his co-accused was carrying 955 grams of conrtraband, so at this stage, it would not be proper to consider the alleged recovery to be an individual recovery as both of them were travelling in the same vehicle. Co-accused is a habitual offender and he knows the trick of the trade and the factum of conspiracy can only be looked into at the time when the evidence is led. Therefore, in the facts and circumstances of this case and the fact that the alleged recovered quantity from both the accused being more than 1 Kg., rigors of Section 37 applies. No ground for bail is made out. The application is, therefore, dismissed.
RAJNISH BHATNAGAR, J FEBRUARY 17, 2021 Sumant