MAYUR KHADE vs GOVERNMENT OF NCT OF DELHI
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16.04.2025
Pronounced on: 17.04.2025
+ BAIL APPLN. 4468/2024
MAYUR KHADE …..Petitioner
Through: Mr. Akhilesh Lakhalal Kamle, Adv.
versus
GOVERNMENT OF NCT OF DELHI …..Respondent
Through: Mr. Tarang Srivastava, APP for State with ASI Sanjeev Kumar, PS ARSC/Crime.
CORAM:
HON’BLE MS. JUSTICE SHALINDER KAUR
J U D G M E N T
SHALINDER KAUR, J.
1. The present Bail Application has been filed under Section 439 read with Section 482 of the Code of Criminal Procedure 1973 (Cr.P.C.), by the Petitioner seeking grant of Regular Bail in connection with the FIR No. 30/2023 dated 10.02.2023 (Subject FIR), registered at the Police Station Crime Branch, Delhi for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
BRIEF FACTS
2. The present case arises from the information received by the Shakarpur Police Station on 09.02.2023, at around 6 P.M., wherein an informant disclosed that one individual, Ses Ram, who is a resident of Himachal Pradesh, is involved in smuggling of Charas into Delhi. The informant further disclosed that the said individual on the same day, will be coming to Delhis Sabzi Mandi Railway Station by Train bearing no. 11058 being on his way to Mumbai to supply Charas and that he would be seated at Seat No. 41 of the A-1 Coach and if apprehended, he would be caught with the possession of the same. Acting upon this intelligence, Inspector Robin Tyagi took the informant to the Senior Officers and thereafter, a Raiding Team was constituted.
3. In furtherance thereof, the Raiding Team reached the Sabzi Mandi Railway Station and upon arrival of the said Train, apprehended Ses Ram and subsequently, upon search of his bag, Charas weighing 1160 gms was recovered from his possession. Whereafter, the subject FIR came to be registered on 10.02.2023 and Ses Ram was arrested on the same day.
4. As per the Prosecution, the role ascribed to the Petitioner is that Ses Ram was carrying Charas for the purpose of delivering it to the Petitioner in Mumbai, further as per his disclosure statement, the Petitioner had arranged for the Train Ticket from Ambala to Mumbai for Ses Ram and had also transferred substantial amount of money into his Bank account in furtherance of procuring the said contraband. Moreover, it was alleged that there are telephonic conversations between Ses Ram and the Petitioner.
5. Subsequently in the investigation, a raid was conducted in Flat No. 815, B-Wing, Kalpataru Cooperative Housing Society, Knamdeo Nagar, Dharavi, from where the Petitioner was apprehended and presently remains in Judicial Custody since 18.02.2023.
6. The Chargesheet was filed by the Investigating Officer on 02.08.2023 and the Charges were framed against the Petitioner and the co-accused Ses Ram under Section 20 read with Section 29 of the NDPS Act vide Order dated 05.10.2023..
7. During the course of the Trial, the Petitioner preferred a Bail Application before this Court which was dismissed as withdrawn with a direction to the learned Trial Court for expeditious disposal of the case vide Order dated 15.01.2024.
8. The Petitioner also moved a Bail Application before the learned Trial court which came to be dismissed vide Order dated 23.10.2024. Aggrieved thereof, the Petitioner has preferred the present Bail Application before this Court.
SUBMISSIONS BY THE PARTIES
9. Mr. Akhilesh Lakhalal Kamle, learned counsel for the Petitioner, at the outset, submitted that the Petitioner has been falsely implicated in the case and the alleged contraband had not even been recovered from the Petitioner or at his instance rather, it has been recovered from the possession of the co-accused Ses Ram, therefore, the rigors under Section 37 of the NDPS Act are not attracted. Moreover, he submitted that the Section 37 of the NDPS Act, cannot be made a tool to be misused by the Prosecution to keep the Petitioner in custody without a Trial for an unreasonably long period of time.
10. He further submitted that the allegation has been made against the Petitioner that he procured the Train Ticket for Seat No. 41 of A1 Coach of the Train bearing no. 11058 for the co-accused Ses Ram, however, no such ticket has been placed on record and no such ticket has been booked by the co-accused or the Petitioner. Furthermore, the Prosecution has brought nothing on the record to show that ticket for Coach B-2, Seat No. 6, which was the actual seat the co-accused was travelling from, was transmitted to the co-accused Ses Ram through Whatsapp. Learned counsel submitted that there is nothing in the disclosure statement of the co-accused, which shows that the Petitioner arranged the train ticket for him as also the allegation that the Petitioner had sent money to the co-accused into his Bank account, falls flat as the co-accused in his disclosure statement has categorically stated that he deals in cash only, therefore, he contended that the alleged transfers were not meant for procurement of the contraband in question for the Petitioner, which allegation also cannot be substantiated from the disclosure statement.
11. Learned counsel also submitted that the disclosure statement of the co-accused, which has been made the sole basis for alleged involvement of the Petitioner in the present case, does not even disclose that the co-accused procured the contraband for the Petitioner or was going to sell it to him, the deduction of the Prosecution to this conclusion is only a mere conjecture without any material evidence.
12. Learned counsel submitted that there are two alleged transactions, one of Rs. 2,000 and other of Rs. 24,999, totalling upto Rs. 26,999, between the co-accused and the Petitioner. However, he submitted that the co-accused has stated in his statement that the said contraband was purchased for Rs. 3,50,000 and he would have sold it for Rs. 6,00,000. Therefore, the numbers do not tally and the Petitioner cannot be implicated in the alleged offence.
13. He further submitted that the Call Detail Records (CDR), on which the Prosecution has relied upon, merely shows that the Petitioner and the co-accused have been in touch through mobile phone but the same cannot, even prima facie, amount to abetment or criminal conspiracy alleged to have been committed.
14. Learned counsel submitted that, apart from the disclosure statement of the co-accused and the CDR, which are not even cogent pieces of evidence for the Prosecution to invoke the provisions of Section 29 of the NDPS Act, there is no material placed on record by the Prosecution to substantiate the allegations made against the Petitioner. Moreover, he submitted that no public witnesses had joined the Raiding Team at the time of search, though they had prior information.
15. Learned counsel, concluding his arguments, submitted that the Petitioner has already suffered incarceration for a period of almost 2 years and the Trial is not likely to conclude in the near future as the Prosecution has cited 22 witnesses, however, till date, not a single witness has been examined. Furthermore, the Petitioner has no criminal antecedents and he has fully cooperated with the investigation so far and will continue to do so and is, nonetheless, ready to abide by the Bail conditions imposed on him as deemed appropriate by this Court while enlarging him on Regular Bail.
16. In support of his contentions, the learned counsel placed reliance on the following decisions:
* Badsha SK vs State of West Bengal (SLP (CRL.) 9715/2023, order dated 13.09.2023)
* Man Mandal vs State of West Bengal (SLP (CRL) 8656/2023, order dated 14.09.2023)
* Dheeraj Kumar Shukla vs State of Uttar Pradesh (SLP (CRL) 6690/2022, order dated 25.01.2023)
* Rabi Prakash vs State of Odisha (2023) SCC OnLine SC 1109
* Rizwan vs State of NCT of Delhi (Bail Appln. 2800/2023; (2024) SCC OnLine Del 4821)
* Dalip Singh @ Langda vs State of NCT of Delhi (Bail Appln. 1312/2018, decided on 14.01.2019; 2019:DHC:239)
* Hari Om Rai vs Directorate of Enforcement (Bail Appln. No. 3548/2024, decided on 20.11.2024; 2024:DHC:8972)
* Pankaj Kumar Tiwari vs Enforcement Directorate (Bail Appln. No. 3210/2024, decided on 24.10.2024; 2024:DHC:8280)
* Vaibhav Jain vs Directorate of Enforcement (Bail Appln. No. 3301/2024, decided on 29.10.2024; 2024:DHC:8408).
17. Per contra, Mr. Tarang Srivastava, the learned APP, while opposing the Bail Application, submitted that after due compliance of the procedure under NDPS Act, the co-accused was searched and 1160 gms of Charas, being the commercial quantity, was recovered from him. Thereafter, the co-accused disclosed in his statement that he was going to deliver the recovered contraband to one namely Mayur (Petitioner) in Mumbai. Subsequently in due course of the investigation, the Petitioner was arrested from Mumbai on 18.02.2023.
18. He submitted that during the investigation, Bank statements of the accused persons were collected, which reflected that the Petitioner transferred approximately Rs. 47,000 from his Bank account to the one of co-accused Ses Ram. Further, the Petitioner had also transferred Rs. 2,57,999 in the Bank account of the co-accused Ses Ram through Kripa Enterprises, Money Transfer Service. Learned APP submitted that the statement of the owner, Kripa Shankar Chaurasiya, of the said Enterprise under Section 161 of the Cr.P.C., was recorded in this regard.
19. Furthermore, he submitted, the investigation also revealed that the Petitioner had booked the railway ticket for the co-accused Ses Ram, to travel from Ambala to Mumbai on 09.02.2023 through Amit Kumar, Owner of Happy Holidays Travels, his statement has also been duly recorded under Section 161 of the Cr.P.C.. Further, it was uncovered that the Petitioner had shared the soft copy of the Railway Ticket to the co-accused Ses Ram through Whatsapp.
20. Learned APP submitted that the investigation also obtained the CDR details of the co-accused Ses Ram and the Petitioner and from the analysis of which, it is revealed that they were actively in touch with each other. Moreover, he submitted, the samples of the contraband recovered was sent for FSL Analysis and as per its report, the same was found to be Charas. Therefore, he contended that the facts of booking of travel, transfer of money and active telephonic contact, prima facie makes a case of conspiracy under Section 29 of the NDPS Act.
21. He further submitted that the Chargesheet has been filed and even the Charges have been framed against the accused persons and the case is at the stage of Prosecution Evidence. In the present case, the quantity of the contraband being commercial in nature, the statutory bar under Section 37 of the NDPS becomes applicable and the twin conditions laid therein, are not satisfied and also considering the nature and gravity of the offence, there is every possibility that the Petitioner may jump Bail and would indulge in similar criminal activities, therefore, the Petitioner is not entitled to be enlarged on Bail.
FINDINGS AND ANALYSIS
22. This Court has heard the submissions advanced by the learned counsel for the Petitioner and the learned APP for the State and perused the Record as well as the Status Report and Annexures therewith, handed across the Board by the learned APP, which have been taken on Record.
23. The case of the Prosecution in crux is that the co-accused Ses Ram was apprehended by the Raiding Team from a Train at the Delhis Sabzi Mandi Railway Station which was headed to Mumbai and he was found to be in possession of Charas, weighing upto 1160 gms, and based on his disclosure statement, the Petitioner was arrested. The Prosecution has alleged that the co-accused was carrying the contraband to supply the same to the Petitioner in Mumbai. One of the evidences, on which the Prosecution in order to implicate the Petitioner has relied upon is that the Petitioner had booked the Train Ticket for the co-accused Ses Ram to travel from Ambala to Mumbai.
24. Learned counsel for the Petitioner had submitted that the co-accused Ses Ram was not travelling in Seat No. 41 of Coach A1 of the Train, as alleged by the Prosecution, instead he was travelling in Seat No. 6 of Coach B2 of the same Train, to which, the learned APP had contended that the co-accused Ses Ram had his seat upgraded from B2 Coach to A1, however, the Petitioner had the Train Ticket booked for the co-accused. Nonetheless, as per the Status Report, the co-accused was arrested from Seat No. 41 of the Coach A1. Admittedly, no recovery of the contraband was made from the Petitioner.
25. The other allegations against the Petitioner are that he was actively in touch with the co-accused, telephonically, for which the Prosecution has relied upon the CDR details and the money transferred by the Petitioner to the Bank account of the co-accused Ses Ram, allegedly, for procuring the contraband.
26. Needless to state, these questions of facts are a matter of Trial which will be substantiated by the Oral / Documentary evidence led before the learned Trial Court.
27. At this stage, it would be apposite to refer to the observations of the Coordinate Bench of this Court in Dalip Singh (supra), which read as under:
On perusal of the record, it is prima facie seen that there are two major missing links in the case of the Prosecution. There is no link established by the Prosecution between the petitioner with the alleged supplier Manoj. Further the entire case of the Prosecution, in so far as petitioner is concerned is circumstantial i.e. based solely on disclosure statement of a co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts. Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner.
28. In the case of Badsha Sk. (supra), the Supreme Court, while noting that the Charges had been framed and the trial was yet to commence with no witness having been examined as on date as well as that the accused/applicant therein had been in custody for 2 years and 4 months, had granted Bail to the applicant in the NDPS case.
29. In another decision of the Coordinate Bench of this Court in the case of Rizwan (supra), this Court, while emphasizing on the factor of delay in Trial and long period of incarceration to be of paramount consideration while adjudicating the Application for grant of Bail, noted as below:
33. Delay in trial and long period of incarceration is also an important factor which has to be kept in mind while considering the application for Bail.
34. In the present case, while the charges have been framed against the applicant, none of the witness has been examined yet. The applicant has been in custody since 21.08.2020. There is no likelihood of the trial being completed in the near future.
34. In the present case, while the charges have been framed against the applicant, none of the witness has been examined yet. The applicant has been in custody since 21.08.2020. There is no likelihood of the trial being completed in the near future.
35. It is trite law that grant of bail on account of delay in trial cannot be said to be fettered by the embargo under Section 37 of the NDPS Act. The Hon’ble Apex Court, in the case of Mohd. Muslim v. State (NCT of Delhi) (supra) has observed as under:
21
.Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil (supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.
22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are at risk of prisonisation a term described by the Kerala High Court in A Convict Prisoner v. State21 as a radical transformation whereby the prisoner:
loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.
24. There is a further danger of the prisoner turning to crime, as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal22 (also see Donald Clemmer’s The Prison Community published in 194023). Incarceration has further deleterious effects – where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.
(emphasis supplied)
30. In the present case, though the Charges have been framed against the accused persons, however, as per the learned APP only one witness has been examined till date and two are in the process of being examined and the Prosecution seeks to examine a total of 22 witnesses to prove the allegations against the accused persons. Notably, the Petitioner has been in custody since 18.02.2023 and there seems no likelihood of the Trial being concluded in the near future.
31. Furthermore, the Petitioner has undergone custody period of approximately 2 years and 2 months and as per the Nominal Roll dated 17.01.2025, he has no involvement in any other criminal case(s) and his overall Jail conduct is Satisfactory.
32. Accordingly, in view of the entire conspectus of facts and circumstances as noted hereinabove, the Petitioner is admitted to Regular Bail pending Trial in the subject FIR, on his furnishing a personal bond in the sum of ?50,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court / CMM / Duty Magistrate and further subject to the following conditions:
i. The Petitioner shall not leave the NCT of Delhi without prior permission of the Learned Trial Court.
ii. The Petitioner shall report at P.S. Crime Branch, Delhi every Saturday at 4:00 P.M. The concerned officer shall release the Petitioner after recording his presence and after completion of all the necessary formalities.
iii. The Petitioner shall immediately intimate the learned Trial Court by way of an affidavit and to the Investigating Officer regarding any change of residential address.
iv. The Petitioner shall appear before the learned Trial Court as and when the matter is taken up for hearing.
v. The Petitioner is directed to give his mobile number to the Investigating Officer and keep it operational at all times.
vi. The Petitioner shall not contact, nor visit, nor offer any inducement, threat or promise to any of the Prosecution witnesses or other persons acquainted with the facts of case.
vii. The Petitioner shall also not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending Trial.
33. It is made clear that no observations made above shall tantamount to be an expression on the merits of the Petitioners case and they have been made for the purpose of consideration of Bail alone.
34. A copy of this Order be sent to the Jail Superintendent concerned for information and necessary compliance.
35. The Bail Application is disposed of in the abovesaid terms.
SHALINDER KAUR, J.
APRIL 17, 2025
KM
BAIL APPLN. 4468/2024 Page 14 of 14