MAHESH vs THE STATE ( NCT OF DELHI) THROUGH SHO OF POLICE STATION CRIME BRANCH (CENTRAL)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08th OCTOBER, 2024
IN THE MATTER OF:
+ BAIL APPLN. 1221/2024
MAHESH …..Petitioner
Through:
versus
THE STATE ( NCT OF DELHI) THROUGH SHO OF POLICE STATION CRIME BRANCH (CENTRAL) …..Respondent
Through: Ms. Nandita Rao, ASC for the State.
SI Om Prakash, ANTF, Crime Branch
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. Petitioner has approached this Court seeking bail in FIR No. 222/2021, registered at Police Station Crime Branch for offences under Sections 20/25/29 of the NDPS Act.
2. The facts, in brief, leading to the present Petition are as under:
a) It is stated that on 15.11.2021, at about 11:43 PM, a call was received by Constable Anuj Kumar, who is posted in Narcotics Cell, Crime Branch, on his mobile phone number from one Zakir Hussan @ Aakir, who is a resident of Bareilly, UP. The said Zakir told the Constable that he is the driver of a Tata vehicle bearing number UP-25 DT-2874 and is accompanied by a helper Shahnwaz Khan and a person namely Shahzeb, who has hired his vehicle from Bareilly to Balangir, Odisha. Zakir further told that the said Shahzeb had loaded some gunny bags containing goods in his truck, which seemed like Ganja. Zakir informed the Constable that they would be reaching Majnu ka Tila between 12:30 AM to 01:30 AM and would be climbing down Wazirabaad Pull towards Burari, Delhi where the goods would be unloaded. The truck driver also stated that some persons, who had gone to Balangir, Odisha along with his Tata truck by car bearing number DL-9C AS/AC-1936 to bring the goods back to Delhi, are also accompanying his truck in their car. It is stated that on receiving the information, Constable Anuj gave the information to SI Lekhraj, who noted it on a paper and after sharing the information with the Inspector and ACP Narcotics Cell, Crime Branch and upon getting approval for taking necessary legal action, the secret information was reduced into writing vide GD No. 0001A dated 16.11.2022, PS Crime Branch in compliance of Section 42 NDPS Act. It is stated that a raiding team was constituted and a trap was laid at Ring Road after climbing down Wazirabad Flyover towards Burari, Delhi. It is further stated that some public persons were also requested to join the raiding team but none of them agreed. It is stated that the raiding team reached the spot and started waiting for Tata truck bearing number UP 25DT 2874. It is stated that at about 1:10 AM, the above-mentioned Tata vehicle was seen descending from Wazirabad bridge towards Burari. It is stated that the truck was stopped by the raiding team. On enquiry, the name of the person sitting on the driving seat was revealed as driver Zakir Hussain @Askir Aakir Hussain, s/o Iqrar Hussain R/o Village-Sijatpur, P.S Mirganj, Bareilly, UP and the identity of other person was revealed as Shahnawaz Khan s/o Afsar Ali R/o Mohalla Sufi Tola, Bareilly, UP, who is the helper of the driver of the truck. The name and address of the third person was revealed as Shahzeb Chaudhary s/o Nawab Chaudhary, R/o House No.-179, Lodhi Tola, Old City, Bareilly, UP. It is stated that when the Police asked Shahzeb Chaudhary about the goods loaded in the truck, he could not give any satisfactory answer. The driver and the helper of the truck told that Shahzeb and his associates had got Ganja packed in sacks loaded in the truck from Odisha. During inspection, it was found that empty plastic crates were kept in the truck. It is stated that ACP Narcotics Cell, Crime was called for the search of truck. It is further stated that Notice in Hindi under Section 50 of the NDPS Act was given to Shahzeb Chaudhary, however, he refused to be searched before any nearest Gazetted officer or Magistrate. It is stated that Personal search of Shahzeb Chaudhary was conducted by SI Lekhraj. It is further stated that persons who had gathered on the spot were asked to join the proceedings, but none of them agreed and went away from there without telling their name and address. It is stated that at about 01:55 AM, ACP Narcotics Cell, Crime Branch reached at the spot and during search of the truck, total 300 Kg. Ganja packed in 12 white plastic bags which was hidden beneath the plastic crates was recovered. It is stated that the recovered Ganja was seized and taken into police possession along with Tata Truck and the present FIR was registered at PS Crime Branch.
b) Shahzeb Chaudhary was taken into custody. During investigation, Shahzeb Chaudhary disclosed that one Sushil @ Sonu, one Akram @ Raju and the Petitioner herein had gone to Odisha on the directions of one Abrar @ Bale and got Ganja loaded in the truck. the accused Sushil @ Sonu was interrogated and arrested under Sections 20/25/29 NDPS Act on 18.11.2021 in the present case. It was revealed that the car No. DL-9C-AS-1936 (Renault Quid Car) used by the accused persons for piloting the truck belonged to Sushil @ Sonu. The above-mentioned Renault Quid Car was also taken into police possession and ownership of the car was found registered in the name of the accused Sushil@ Sonu.
c) Charge-sheet has been filed against Shahzeb Chaudhary and Sushil @ Sonu. Raids were conducted to arrest Akram @ Raju, Abrar @ Bale and the Petitioner herein. Notices under Section 67 of the NDPS Act were pasted outside the houses of the Akram @ Raju, Abrar @ Bale and the Petitioner herein asking them to join investigation. However, they did not join the investigation. Accordingly Non-bailable Warrants were issued against Akram @ Raju, Abrar @ Bale and the Petitioner herein.
d) It is stated that Akram @ Raju was arrested on 08.09.2022 as he was in judicial custody in another FIR, being FIR No.280/2022 registered at Police Station Special Cell for offences under Sections 186/353 IPC and Sections 25/27 Arms Act.
e) It is stated that Abrar @ Bale was arrested on 12.09.2022 from the Trial Court premises after taking necessary permission from the concerned Court.
f) It is stated that the Petitioner herein was arrested on 08.12.2022 from the Trial Court premises after taking necessary permission from the concerned Court.
g) Supplementary charge-sheet has been filed on 28.01.2023.
h) Charges against the accused persons, including the Petitioner herein have been framed on 22.12.2023 and trial has commenced.
i) Petitioner approached the Trial Court by filing an application for grant of bail and the said application was rejected vide Order dated 05.03.2024.
j) The Petitioner has, thereafter, approached this Court by filing the present Bail Application.
3. It is stated by the learned Counsel for the Petitioner that other than disclosure statement there is nothing to implicate the Petitioner herein. He states that the Petitioner travelled in the car from Delhi to Odisha and came back in the same car but there is no material to show that he was travelling with the other co-accused. He states that even Call Detail Records of the Petitioner herein does not show that the Petitioner was travelling with the co-accused. He states that in the absence of any material it cannot be said that the Petitioner has committed the offence under Sections 20/25/29 of the NDPS Act.
4. Per contra, learned ASC for the State, submits that the Petitioner travelled with Shahzeb Chaudhary, Sushil @ Sonu and Akram @ Raju from Delhi to Odisha and had returned back in the car with them. She further states that the Call Detail Records of the Petitioner herein and other co-accused establishes that he was in constant touch with Shahzeb Chaudhary.
5. Heard the learned Counsel for the Petitioner and the learned ASC for the State and perused the material on record.
6. The parameters for grant of bail for offences punishable under the NDPS Act, is governed by Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under:-
“37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] 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 any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]”
7. A perusal of Section 37 of the NDPS Act indicates that bail can be granted only when there are reasonable grounds for believing that the accused is not guilty of an offence and he is not likely to commit any offence when released on bail.
8. The Call Detail Records given in the Status Report is being reproduced herein and the same reads as under:
9. Other than the disclosure statement of Shahzeb Chaudhary there is no material to show that the Petitioner has travelled in the car from Delhi to Odisha. A perusal of the CDR only shows that on 08.11.2021 at about 7:19 AM, the Petitioners location was at Akshardham Metro Station which does not correspond to the location of other two accused. The only point on which stress has been laid by the learned ASC for the State is that on 09.11.2021 at about 11:33 AM, the Petitioner herein and Akram @ Raju had switched off their phones in Mahasamund, MP. This contention is too remote for this Court to come to the conclusion that the Petitioner was involved in the offence. There is no material to show that the Petitioner herein and Akram @ Raju were together in Mahasamund, MP or that they went to Odisha from Delhi together or that they came back from Odisha to Delhi together.
10. In the absence of any material on record to show that the Petitioner was involved in the offence other than the disclosure statement, this Court is, therefore, inclined to grant bail to the Petitioner herein on the following conditions:
a) The petitioner shall give a security in the sum of Rs.1,00,000/- with two sureties of the like amount to the satisfaction of the Trial Court;
b) The Petitioner is directed to continue to reside at the address given in the Memo of Parties before this court and in case there is any change in the address of the Petitioner, the Petitioner is directed to intimate the same to the Investigating Officer.
c) The Petitioner is directed not to leave the city of Delhi without prior permission of the concerned Court.
d) The Petitioner is directed to report to the local police station twice in a every week, i.e. on every Tuesday and Thursday at 10:00 AM and the Petitioner shall be released within an hour after completing the formalities;
e) The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times;
f) The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner;
g) The petitioner shall attend all the Court proceedings.
h) In case it is established that the petitioner has tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.
11. The bail application is disposed of, along with all the pending application(s), if any.
12. Be it noted that this Court has not made any observations on the merits of the case.
SUBRAMONIUM PRASAD, J
OCTOBER 08, 2024
Rahul
BAIL APPLN. 1221/2024 Page 1 of 9