The conscious possession of a commercial quantity of a narcotic substance and the compliance with specific sections of the NDPS Act, 1985 are crucial in determining bail eligibility.

JUDGMENT

Anu Malhotra, J. - The applicant, vide the present application seeks the grant of regular bail in relation to FIR No.198/2017, PS Crime Branch under Sections 21/25/29 of the NDPS Act, 1985 submitting to the effect that he is incarcerated since 09.11.2017; that he has been falsely implicated in the instant case; that he has clean antecedents and that he has nothing to do with the alleged commission of the offence.

2. Inter alia, the applicant has submitted that he was merely a driver of a transporter / facilitator named Rakesh Sharma who runs a small transport business of providing trucks/lorries on rental basis. The applicant has further submitted that he has rendered all his cooperation for completion of the investigation. The applicant has further submitted that the charge-sheet in the matter has already been filed and charges have been framed vide order dated 08/08/2018. Inter alia, the applicant has further submitted that there are more than 57 witnesses cited of whom 23 witnesses have been examined inclusive of PW-20 who is the IO/complainant, PW-2, Vikram and PW-21, Suresh Sharma and PW-23 named Ram Babu. The applicant has further submitted that the public witnesses have not supported the prosecution version and that the trial would take time which would cause prejudice to the rights of the applicant.

3. The applicant has further submitted that the provision of Section 50 of the NDPS Act, 1985 has not been complied with, in as much as, the presence of any Magistrate or Gazetted officer at the time of search of an accused is necessary to ensure authenticity, transparency and creditworthiness of the entire proceedings.

4. The applicant has further submitted that PW-20 SI Arvind Kumar has stated in his cross examination that he has not even tried to contact any ACP or any Magistrate or any other Gazetted Officer despite availability of prior information and contact numbers in his own mobile handset which vitiates the proceedings and the trial and that legislative safeguards have been deliberately defeated and thus the same casts grave suspicion on the veracity of the prosecution version. The applicant has further submitted that ACP Jasbir Singh, (ISC) Crime Branch examined as PW-8 has also not supported the prosecution version and that three witnesses i.e. PW-2 named Vikram, PW-23 named Ram Babu and PW-21 named Suresh Sharma have also not supported the prosecution version. The applicant has further submitted that the provisions of Section 42 of the NDPS Act, 1985 have also not been followed in the instant case.

5. The status report dated 07.03.2022 submitted by the State under the signatures of Inspector, Crime Branch (AGS), Dwarka, New Delhi puts forth the prosecution version to the effect that on 09/11/2017, a secret information was received at the IGIS Section, Crime Branch, Dwarka, Delhi that a person namely Ajay R/o Uttam Nagar, Delhi was involved in the illegal purchase of 'PHENSEDYL' Syrup in bulk quantity containing Codeine (a narcotic drug) without any authorized documents/papers from his parties in Delhi and Agra and that the said Ajay used to prepare parcels of these illegal consignments of Phensedyl Syrup clandestinely with the help of his associates Mukesh & Sanjay in Okhla Industrial Area and further supply it to their parties in Malda and Kolkata illegally by concealing under other goods in the trucks arranged by the accomplice transporter Rakesh Sharma.

6. Inter alia, the State has submitted through the said status report that the said Rakesh Sharma used to depute his trustworthy driver Fantoosh Yadav (the accused/applicant) on the truck for safe transportation/delivery of contraband and that one such consignment was to be smuggled by Ajay and Mukesh in truck No. HR-38T-3541 with the truck being of Rakesh Sharma driven by Fantoosh (accused/applicant herein) and the said truck was to pass through Maa Anand Mai Marg, Okhla between 7.00 AM to 7.30 AM on that day. As per the said status report, the said infor