Dilshad v. The State NCT of Delhi

1. This is an application filed by the Petitioner under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking grant of anticipatory bail in FIR No.184/2025 registered at PS Jama Masjid, Delhi under Section 20/29 Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985.

2. As per the Status Report, FIR No. 184/2025 was registered under Sections 20/29 NDPS Act, based on a tip received during patrolling near Kabootar Marg, Delhi, where two individuals, namely, Sabir Ahmad and Md. Amzad were apprehended with 0.490 Kg and 0.554 Kg of ganja respectively.

3. On interrogation, accused Sabir disclosed the name of his supplier, “Sabboo,” who was arrested on 03.04.2025 with 14.[7] kg of ganja. Further interrogation of Sabboo revealed the names of two more alleged suppliers, including the petitioner. A raid was conducted on 05.06.2025 at the petitioner’s residence, which failed, as he was not present, and despite being served a notice under Section 67 NDPS Act, he did not join the investigation. Consequently, a Non-Bailable Warrant (NBW) was issued against the petitioner on 19.05.2025, followed by proceedings under Section 84 BNSS on 27.05.2025. The chargesheet has been filed against the other 3 accused, and the next date of hearing is 21.08.2025.

4. The learned counsel for the applicant argues that the only incriminating material against the applicant is the disclosure statement made by the co-accused Shabboo, which has no independent evidentiary value. It is submitted that the applicant and Shabboo are cousins who work together selling toys during festivals, and their frequent telephonic contact is only due to their shared livelihood. The Call Detail Records (CDR) merely reflect familial and professional communication, not any criminal conspiracy. Emphasis is laid on the fact that no recovery has been made from the applicant and no direct involvement has been attributed to him.

5. It is further contended that despite no role in the alleged offence, police officials visited his residence in Bareilly on 05.04.2025 and again on 22.05.2025, issuing a Section 67 NDPS Act notice with no date of appearance mentioned, causing unnecessary distress. Learned counsel for the applicant asserts that the applicant is innocent, has no criminal antecedents, and has never been involved in any unlawful activities. The applicant is deeply disturbed by the repeated visits and fears false implication in a case with which he has no connection. It is also highlighted that there is no independent witness or corroboration to support the allegations against him.

6. Reliance is placed on the judgment in Manirul v. State of NCT of Delhi & Anr., Bail Appln. 1479/2025, where bail was granted in similar circumstances based solely on disclosure statements without corroborative evidence. Further reliance is placed on Asha Dubey v. The State of Madhya Pradesh, Crl. Appeal No. 4564 of 2024, which inter alia held that a declaration under Section 82 Cr.P.C. does not automatically bar the grant of anticipatory bail. The applicant reiterates his willingness to join the investigation and comply with any conditions imposed by the Court. He prays for protection from coercive action and undertakes to furnish a reliable surety to the satisfaction of the Court.

7. Per contra, the Learned APP for the State submitted that the notice dated 05.04.2025 was mistakenly served. However, she submits that Dilshad has been duly served through his brother and despite being aware of the summons, he failed to appear. It is emphasized that intermediate quantity of ganja was recovered from co-accused Shabboo, and the applicant was expected to assist the investigation based on the disclosures. The State asserts that the applicant has not demonstrated any bonafide intent to cooperate with the investigation. Consequently, the applicant’s conduct reflects non-cooperation despite knowledge of the proceedings.

8. The APP further submitted that proceedings under Section 82 CrPC have already been initiated against the applicant due to his continued evasion. It is argued that the judgment in Asha Dubey (supra) would not apply in this case since Section 82 proceedings are still pending and not concluded. The applicant’s nonappearance has hindered the investigation process, despite multiple opportunities provided. The State also informed that charge sheet has already been filed against the other three accused persons.

9. Heard learned counsel for the applicant and the learned APP for the State as well as perused the case file and the Status Report filed by the Investigating Officer. The present matter pertains to the recovery of ganja in intermediate quantities from co-accused Sabir Ahmad and Mohd. Amzad, followed by a larger recovery of 14.[7] kg ganja from another accused, “Sabboo,” who, in his statement under Section 67 NDPS Act, implicated the applicant as one of the suppliers.

10. The learned counsel for the applicant contends that there is no recovery from the applicant, and his implication is solely on the basis of the disclosure statement of co-accused Sabboo. It is also urged that the applicant and the co-accused are cousins, and their telephonic contact is attributable only to familial and business relations. However, the Supreme Court has consistently held that disclosure statements under Section 67 NDPS Act, while not substantive evidence, can serve as a basis for investigation and custodial interrogation. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the Constitution Bench held that confessions under Section 67 are not admissible as evidence unless corroborated, but this does not preclude the investigating agency from acting on such statements during the course of investigation. In State of Haryana vs. Samarth Kumar 2022 (3) RCR (Criminal) 991, the Supreme Court clearly held that the accused may be able to take the advantage of decision in Tofan Singh (supra) at the time of arguing the regular bail application or at the time of final hearing after the conclusion of trial.

11. It is a settled law that power to grant anticipatory bail under Section 438 Cr.P.C is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. In the instant case, the material on record reveals that the applicant has not joined the investigation despite the issuance of notice under Section 67 NDPS Act and service of the same (albeit upon his brother). On 22.05.2025, the Investigating Officials reached the applicant’s residence and inquired about the applicant and at that time, the applicant was not present. The officials delivered a notice under Section 67 NDPS Act (annexure P-2). A raid conducted at his residence on 05.04.2025 proved unsuccessful. Thereafter, a Non- Bailable Warrant was issued on 19.05.2025, followed by proceedings under Section 84 BNSS on 27.05.2025. The repeated avoidance by the applicant demonstrates a clear pattern of non-cooperation, disentitling him from the discretionary relief of anticipatory bail. It is well settled that anticipatory bail cannot be granted to an absconder or a proclaimed offender as held in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730].

12. The Court is also guided by the principle laid down in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 which reiterated the crucial principal laid down in Lavesh v. State (supra), wherein it was held that when a person against whom a proclamation has been issued is absconding and is declared a proclaimed offender, he is not entitled to anticipatory bail. In the present case, although the proclamation under Section 84 BNSS (equivalent to Section 82 CrPC) is still in process, the conduct of the applicant, in avoiding the investigation despite being aware of the proceedings, squarely attracts the ratio of the aforesaid judgment.

13. The contention that the telephonic conversations between the applicant and co-accused reflect innocent contact is a matter of trial and cannot be appreciated at the anticipatory bail stage. As held by the Supreme Court in State v. Anil Sharma, (1997) 7 SCC 187, custodial interrogation may be necessary for a fair and effective investigation, and anticipatory bail should not be granted in a manner that frustrates the investigation.

14. The reliance placed on Asha Dubey v. State of Madhya Pradesh (supra), is misplaced. In that case, the declaration proceedings under Section 82 CrPC had concluded, and the applicant had joined investigation. In contrast, in the present matter, the applicant has not made any effort to appear before the authorities, despite being fully aware of the process issued against him. Similarly, the judgment in Manirul (supra), is distinguishable on facts as in that case there were no allegations of absconding or willful noncooperation.

15. In view of the above discussion, the nature of allegations, the stage of investigation, the material implicating the applicant through co-accused disclosure and call detail records, and more importantly, the applicant’s repeated evasion of the investigative process, this Court does not find it to be a fit case for grant of anticipatory bail. The application is, accordingly, dismissed. However, it is made clear that the observations made herein are only for the purpose of adjudicating the present application and shall not influence the trial or any other proceedings on merits.