Full Text
HIGH COURT OF DELHI
SES RAM
S/o- Shri. Mahinder Singh, R/o-Vill Dhara, PO. Dhara, Tehsil-Bhuntar, Shat (38/98), District-Kullu, Himachal Pradesh .....Petitioner
Through: Mr. Vishal Arun Mishra, Mr. Vivek Kumar Singh, Ms. Rupali Panwar and
Mr. Shubham Gupta, Advocates.
Through: Mr. Utkarsh, APP for the State
Branch.
JUDGMENT
1. First Bail Application has been filed under Section 483 BNSS, 2023 (earlier Section 439 Criminal Procedure Code, 1973) on behalf of the Accused/Applicant seeking Bail in SC No. 430/2023 pending adjudication before Special Judge NDPS, Tis Hazari arising out of FIR No. 30/2023 under Sections 20/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’), dated 10.02.2023 registered at PS Crime Branch.
2. Briefly stated, the case of the Prosecution is that on 09.02.2023 a secret informer came to the office of the Complainant/ Insp. Robin Tyagi, and informed him that one Ses Ram/Applicant is involved in supplying ‘Charas’ in Delhi and other States and is likely travel to Mumbai on that day by Train Number 11058 from Subzi Mandi Railway Station with ‘Charas’. He would be seated in Coach Number A-1, Seat Number 41,, which was scheduled to reach Subzi Mandi Railway Station at around 8:00 PM. If surveillance is maintained near Coach A-1 at Subzi Mandi Railway Station, he can be apprehended with the contraband.
3. At 6:15 PM, the information was presented to Inspector Mangesh Tyagi who informed ACP/ARSC Sh. Arvind Kumar, who then directed that a raiding party be formed and deployed for surveillance around the coach. Around 8:13 PM, the train arrived and they entered Coach A-1. The Applicant was found sitting on Seat No. 41 and he was apprehended and brought to the Platform.
4. Upon interrogation, he disclosed his name and address as Ses Ram, s/o Mahinder Singh, r/o Village & PO Dhara, Tehsil Bhuntar, Himachal Pradesh, age 30 years. Applicant/Ses Ram was served with the Notice under Section 50 NDPS Act. He declined to get searched by the Gazetted Officer.
5. Thereafter, his personal search was conducted and also the backpack bag which was blue and grey, with straps, zipper closure, and labeled “Quechua” on top and “Capacity 55 Ltr” in silver at the bottom. Inside the bag, amongst clothes, a parcel was found wrapped in white transparent tape made from a sack. Inside was a cardboard box wrapped in the same tape labelled “Power Cell LED Torch” and handwritten with “DINU Mama.”
6. On opening, a black, foul-smelling substance wrapped in transparent polythene was recovered, which tested positive for „Charas’ and weighed 1160 grams (excluding packing). It was repacked as originally found, placed in a white cloth, tied with a cloth strip, and marked as Parcel A. The bag was then separately packed in a white plastic sack, tied, marked as Parcel B, and sealed with the same official seal.
7. Thereafter, he was taken to the Office and his body search was conducted before ACP Shri Arvind Kumar but no narcotic substance was recovered. FIR under Section 20 of the NDPS Act, was registered.
8. The Applicant has sought Bail on the grounds that though the charges have been framed, the prosecution seeks to examine a total of 22 witnesses to prove the allegations against the accused persons. However, till now only one witness has been examined till date and two are in the process of being examined
9. The co-accused namely Mayur Khade has been enlarged on bail by a Coordinate Bench of this Court on the ground of prolonged incarceration.
10. On merits, it is submitted that there is no material on record to show that the raiding Investigating Officer (IO) was duly authorized to conduct the raid in question. The mandatory provisions of Section 42 of the NDPS Act which require prior authorization and recording of information, have not been complied with, thereby vitiating the alleged recovery and rendering the prosecution case doubtful.
11. Further, the alleged recovery is shrouded in doubt; as per the prosecution‟s own case, the recovery from the applicant was affected at Platform No. 1 of Sabzi Mandi Railway Station. However, the Investigating Officer failed to obtain any CCTV footage from the said platform, which is a public place and likely to be under surveillance. Moreover, no video recording of the recovery proceedings was made by the raiding team, which casts serious doubt on the genuineness and credibility of the alleged recovery.
12. It is submitted that the Ld. Session Court has erred in giving the observation that videography was not a mandate at that time. But after the implementation of BNSS since 01.07.2024, videography has become mandatory.
13. Furthermore, it is submitted that the alleged recovery took place at a crowded public place, i.e., Sabzi Mandi Railway Station, where it would have been reasonably easy for the prosecution to secure independent witnesses. Despite the constant presence of government personnel such as para-military forces, local police, CRPF and ticket checking staff, not a single independent public witness has been associated or cited in the present case, which creates a serious doubt over the fairness and transparency of the recovery proceedings.
14. The Applicant is a permanent resident of Vill. Dhara, Tehsil – Bhuntar, shat (38/98), District Kullu, Himachal Pradesh and is residing with his family. There can be no apprehension that the Applicant will abscond. The Applicant undertakes to be present before the IO whenever his presence is required, and further that he will not influence witnesses or tamper with the evidence.
15. It is thus, prayed that Bail may be granted.
16. Reliance is placed on Bharat Chaudhary vs Union of India, in SLP (Crl.) 5703/2021 & 8919/2021 decided on 13.12.2021, Biswajit Mondal @ Biswajit Mandal vs. The State of West Bengal, in SLP (Crl.) 11731/2022 decided on 14.02.2023, Union of India vs. K.A. Najeeb, in SLP (Crl.) NO. 11616/2019 decided on 01.02.2021, S.C. Legal Aid Committee Representrial Undertrial Prisoners vs Union of India, 1994 SCC (6) 731, Mohd. Muslim @ Hussain vs. State (NCT of Delhi, SLP (Crl.) 915/2023 decided on 28.03.2023, Govinda vs. State Govt. of NCT of Delhi, Bail Appl. 1090/2024 decided on 23.09.2024, Badri Singh vs. State of NCT of Delhi, Bail Appl. 3533/2023 decided on 06.12.2023, Gurpreet Singh vs State of NCT of Delhi, Bail Appl. 857/2023 decided on 05.02.2024
17. The State in its Status Report has stated about the facts of this case and the recovery of Charas from the Applicant.
18. It is further stated that during the investigation, bank statements of accused persons were collected, which show that accused Mayur Khade transferred approx. Rs. 47,000/- from his Bank account to the Bank account of Applicant Ses Ram. Co-Accused Mayur Khade also transferred Rs. 2,57,999/- in the bank account of Applicant through Kripa Enterprises, Money Transfer Service. The Statement u/s 161 CrPC of, Sh. Kripa Shankar Chaurasiya, owner of above said Kripa Enterprises, Money Transfer Service has also been recorded, in this regard.
19. Further, it was also found that accused Mayur Khade got the Railway ticket booked for Applicant to travel from Ambala to Mumbai on dt. 09.02.2023 through Shri Amit Kumar whose Statement u/s 161 CrPC, has been recorded. The ticket was upgraded to Seat No. A1/41.
20. During the course of investigation, Call Details of Applicant and coaccused Mayur Khade were obtained which revealed that they were actively in touch with each other.
21. Samples were deposited at FSL Rohini for chemical analysis. Report has been received that the recovered substance was found to be ‘Charas’.
22. Charge-sheet of the case has been filed in the Trial court. Charges against accused persons have been framed and case is at the stage of Prosecution Evidence.
23. It is submitted that 1160 gm Charas i.e. commercial quantity of contraband, has been recovered and the nature or gravity of offence is one of the most important factor. Moreover, rigours of section 37 of NDPS Act are applicable and the twin conditions stipulated are not satisfied in the present case & therefore, the accused is not entitled to be released on Bail.
24. It is therefore, submitted that keeping in view of the aforesaid facts, circumstances and gravity of the offence, the bail application is strongly opposed and it may kindly be dismissed in the interest of justice and being devoid of merits. Submissions heard and record perused.
25. The case of the Prosecution in crux, is that the Applicant was apprehended from a Train at the Delhi‟s Sabzi Mandi Railway Station and he was found to be in possession of Charas, weighing upto 1160 gms. The Prosecution has alleged that the accused was carrying the contraband to supply the same to the co-accused in Mumbai.
26. Admittedly, the Applicant has been in judicial custody from 23.11.2022. The Chargesheet has already been filed but only one witness, out of 22 Prosecution witnesses, has been examined. The Trial is ongoing and is going to take long to conclude.
27. The Supreme Court in the case of Union of India v. K.A. Najeeb, (2021) 3 SCC 713 observed that if the timely trial is not possible, Courts should ordinarily release the undertrials on bail and statutory restrictions do not exclude discretion of the constitutional Courts to grant bail on the ground of fundamental right enshrined in Part III of the Constitution. The Personal Liberty guaranteed by Part IV in the Constitution, would cover not only the protective but also bring within its ambit not only due procedure and fairness but also access to speedy trial.
28. The Supreme Court in the case of Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India, (1994) 6 SCC 731 had observed that undertrials cannot be indefinitely detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same has been established before a neutral arbiter. However, owing to the practicalities of real life were to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.
29. From the principles enunciated by the Apex Court in the aforementioned judgments, it emerges that the rigors of S.37 NDPS Act has to yield to the constitutional rights of the Applicant. As observed by the Apex Court in Mohd. Muslim v. State (NCT of Delhi), Special Leave Petition (Criminal) No. 915/2023, the public interest may require stringent Bail conditions but if the Trials are not concluded in time, the injustice wrecked on the individual is immeasurable.
30. Considering that the Applicant is in Judicial Custody for about 30 months and the trial is likely to take long, Applicant is granted Regular Bail, on the following terms and conditions: a) The Applicant/Accused shall furnish a personal bond of Rs50,000/- each and one surety of the like amount each, subject to the satisfaction of the learned Trial Court. b) The Applicant/Accused shall appear before the Court as and when the matter is taken up for hearing; c) The Applicant/Accused shall provide their mobile number/changed mobile number to the IO concerned which shall be kept in working condition at all times; d) The Applicant/Accused shall not indulge in any criminal activity and shall not communicate or intimidate the witnesses. e) In case the Applicant/Accused change their residential addresses, the same shall be intimated to learned Trial Court and to the concerned I.O.
31. The copy be sent to the Ld. Trial Court and the Jail Superintendent for information and compliance.
32. The Bail Application along with pending Application(s), if any, is disposed of accordingly.
JUDGE JULY 25, 2025