MAHENDER SINGH vs STATE (NCT OF DELHI)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th August, 2024
% Pronounced on: 01st October, 2024
+ BAIL APPLN. 1022/2024
MAHENDER SINGH
S/o Shri Dara Singh,
R/o PS Kulgari, Punjab ….. Petitioner
Through: Mr. Trideep Pais, Sr. Advocate with Mr. Shivam Sharma, Ms. Gargi Sethi & Ms. Saloni, Advocates.
versus
STATE (NCT OF DELHI)
Through SHO,
PS Crime Branch, South West, Delhi ….. Respondent
Through: Ms. Richa Dhawan, APP for State.
S.I. Rohit, PS Crime Branch, Delhi.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The present Petition under Section 439 of the Code of Criminal Procedure, 1973 read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985) has been filed on behalf of the petitioner seeking grant of regular bail in FIR No. 151/2022 registered under Sections 21/27A/29 of the NDPS Act, 1985 at Police Station Crime Branch, South West, Delhi.
2. The petitioner has asserted that he has been falsely implicated in the present case on the basis of false and manipulated disclosure statement of the co-accused persons. The Chargesheet has already been filed in the present matter before the learned Trial Court.
3. According to the prosecution from the statement of co-accused-Pankaj, the involvement of the petitioner came to the knowledge of the Police. The Police obtained warrants from the Court and seized vehicle i.e., Toyota Glanza bearing No. PB 29 AD 4262 which they came to know was purchased by petitioner.
4. Thereafter, the Police reached Golden Enclave Extension, Ekta Nagar, Feerozpur, Punjab on 19.02.2023 from where they arrested the petitioner. The petitioner was served with the Notice under Section 50 of the NDPS Act, 1985 but he refused for his search to be conducted in the presence of a Gazetted Officer or a Magistrate.
5. It is submitted that a blue coloured bag which he was carrying, a double black polythene containing matmaila coloured lumped substance, was recovered which on testing using the field-testing kit, was found to be positive for Heroin. The total weight of the substance along with polythene was 1820 grams. Rs. 19,30,000/- was also recovered from the petitioner.
6. The Police recorded the disclosure statement of the petitioner and on his pointing out another car being Hyundai Verna bearing No. HR 12 AG 0110 was recovered which was being used in selling and buying the drugs.
7. The investigations were conducted to trace the money being sent through hawala by the petitioner. The Police came to know that the petitioner had sent Rs. 40,00,000/- and Rs. 60,00,000/- to someone in Mumbai. One team was sent to Mumbai to investigate the same but as the mobile number was international, nothing was revealed in the investigations.
8. Further, one phone i.e., I-Phone 14 Pro was recovered from the petitioner from which the Contact Number +1567314816 (named as Bigro), was traced and the location of the same found to be in Pakistan. From the WhatsApp interception, the Police came to know that the said number was in contact with another number +17862457277 which was being used in India. The number was traced to be used in Amritsar Jail but no connection could be traced out.
9. The Supplementary Chargesheet has been filed on 10.08.2023.
10. The petitioner has claimed that he has been falsely implicated in the present case on the disclosure statement of the co-accused, even though there is no evidence against him. The disclosure statement of co-accused is not admissible in law against the petitioner and no corroborative evidence has been produced by the Police in support thereof.
11. The recovery of Heroin and cash are also suspected as no independent witness was made a party to the alleged search and recovery.
12. Moreover, in the GD Entry made in regard to the arrest of the petitioner, there is no mention of recovery or seizure of Heroin from the possession of the petitioner. It is evident that the petitioner has been falsely implicated in this case.
13. Furthermore, it is highly improbable that the petitioner on whose house a Notice under Section 67 of NDPS Act, 1985 had been posted and was aware that the Police searching for him, would be carrying drugs in his bag to be an easy prey for the Police. The recovery of drugs and cash is a false and concocted story. It is impossible that a shoulder bag could fit 32 bundles of notes and 1820 grams of drugs.
14. The Police have failed to produce any document to show that the petitioner was in contact with any person named Bigro in Pakistan. Moreover, the phones of the petitioner were not sealed either physically or digitally and were accessed by the Police during the custody of the petitioner. Therefore, the evidence in regard to the mobile phones cannot be relied upon. The recovery of Toyota Glanza Car cannot point to any incriminating evidence against the petitioner.
15. It is submitted that the prosecution has not been able to explain that the difference between the weights of the sample of alleged recovered material from the petitioner taken before the Metropolitan Magistrate and sent to FSL. During 52-A proceedings before the learned Metropolitan Magistrate on 01.03.2023, two samples of 5 grams each were taken and sealed in the presence of the learned Metropolitan Magistrate, but when the samples reached the FSL; the weight is shown to be 3.8 grams only. Further, no explanation has been given for the delay of 9 days in conducting 52A proceedings and 6 days delay in sending the samples to FSL.
16. It is also submitted that the first Regular Bail Application of the petitioner has been dismissed by the learned Special Judge, NDPS Act, Dwarka Courts vide Order dated 23.02.2024.
17. The petitioner is in custody from 19.02.2023 and the trial is likely to take considerable time. The prolonged incarceration of the petitioner is causing him and his family members great prejudice and unnecessary hardship. The petitioner is not likely to tamper with the evidence or the witnesses and the recovered alleged material is already in the possession of the Police.
18. The interim bail for a period of month had been granted to the petitioner vide Order dated 28.07.2023, after which he surrendered himself within the stipulated time.
19. Therefore, it is prayed that the regular bail may be granted to the petitioner.
20. The Status Report has been filed on behalf of the State, wherein it is submitted that co-accused-Shammi Kumar @ Sunny Kumar during his remand, had disclosed that 10.5 kgs of goods suspected to be contraband were recovered from A-595 2ndFloor, Gali No.15, Mahavir enclave Part 2, Delhi, the above-mentioned flat in the name of Vishal Puri, relative of accused Pankaj. 10.5 kgs (06+2.5+2) of goods recovered in three polyethene given marks C, D, and E. FSL result of mark D (2.5 Kg) and E (2 Kg) was found to be positive. Whereas, mark C contains dextromethorphan.
21. It is submitted that co-accused Pankaj disclosed about Mahender Singh @ HM, Shamsher Singh and Lovepreet @ Love Sarpanch as his associates. Mahender Singh @ MH was arrested on 19.02.2023 from Punjab, 1820 grams of Heroin and Rs. 19,30,000/- were recovered from his possession.
22. The present petition has been opposed on the ground that the offence committed by the petitioner is serious in nature and an International Drug Syndicate is involved. The recovery in the present case is of commercial quantity in nature and total 6820 grams of Heroin, out of which 500 grams + 2.5 kgs + 2 kgs of Heroin were recovered from Shammi Kumar @ Sunny Kumar and 1820 grams of Heroin, from the accused petitioner. Therefore, Section 37 of NDPS Act, 1985 is applicable.
23. The bail has also been opposed on the ground that Rs. 22,00,000/- was recovered from the co-accused-Shammi Kumar @ Sunny Kumar and Rs. 19,30,000/- cash was recovered from the accused/petitioner.
24. The Toyota Glanza Car bearing No. PB 29 AD 2462 was recovered at the time of arrest of the accused-Pankaj, which is registered in the name of accused-petitioner. It is submitted that the petitioner has previous involvement in five cases, out of which, two cases are of NDPS Act, 1985.
25. Therefore, the present petition has been vehemently opposed on behalf of the State.
26. Submissions heard.
27. Pertinently, the recovery of 1820 grams of Heroin has been effected from the petitioner, though the petitioner has claimed that the same has been planted on him.
28. Learned Senior Advocate on behalf of the petitioner has argued that no person who knows that the Police is in search of him, would carry a bag full of Heroin and also the cash of Rs. 19,30,000/-, nor can the Heroin along with bundles of money could fit in one bag as has been claimed by the prosecution. However, all these contentions are a matter of trial. At this stage, it cannot be overlooked that the recovery of 1820 grams Heroin from the petitioner is of commercial quantity and the cash of Rs. 19,30,000/- was also recovered from the petitioner.
29. A plea has also been taken that there was a delay in sampling under Section 52(a) of the NDPS Act, 1985. However, this aspect has been settled by the Apex Court in the case of Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379, wherein it was observed that the scheme of the Act in general and Section 52(a) of the NDPS Act, 1985 in particular does not provide for any time for making an Application for drawing of samples and certification. While there is no scope for prescribing or reading a timeframe into the provision, an Application for sampling and certification ought to be made without undue delay.
30. Therefore, the delay of 6 days in drawing the sample as alleged by the petitioner may not enure to his benefit at the stage of consideration of bail application and is a subject matter of trial, to consider if any prejudice has been caused to the petitioner on account of delay in moving the application and taking the samples.
31. Likewise, the contention that there was a variation in the weight of the samples taken before the Magistrate and thus received in FSL, is again subject to various explanations and thus, is a subject matter of trial.
32. Pertinently, the petitioner is involved in five cases, out of which, two cases are of NDPS Act, 1985 i.e., FIR No. 139/2013 under Sections 21/25/29 of NDPS Act, 1985 registered at Police Station Rama Bhatinda and FIR No. 132/2021 under Sections 21/25/29 of NDPS Act, 1985 registered at Police Station Pikhi Pind Mansa.
33. Looking at the petitioners antecedents and previous involvement in similar cases, out of which, two cases are of NDPS Act, 1985, it is evident that the Petitioner has criminal antecedents and there is likelihood of the petitioner committing the offence, if released on Bail. Furthermore there is a recovery of huge quantity of Heroine as well as the money which is claimed to have been procured from sale of Drugs. For all the aforesaid reasons, the present case is not a fit case for grant of bail.
34. Accordingly, the present petition for Bail is dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
OCTOBER 01, 2024
S.Sharma
BAIL APPLN. 1022/2024 Page 7 of 7