The recovery of a commercial quantity of contraband and the refusal to be searched in the presence of a gazetted officer or magistrate can implicate an individual in the conscious possession of the contraband, and stringent parameters for the grant of bail under the NDPS Act apply.

ORDER

Rajnish Bhatnagar, J. The present bail application has been filed by the petitioner under Section 439 Cr.P.C. read with Section 37 of the NDPS Act seeking regular bail in case titled as N.C.B. Vs. Rafik & Ors., S.C. No. 107/2018 registered under Sections 20/29 of the NDPS Act at P.S. NCB pending before Sh. Sh. Ajay Kumar Jain, Special Judge (NDPS), Patiala House, New Delhi.

2. Briefly stated, the facts of the case are that on 05.11.2017, a secret information was received by IO Rajiv Sehrawat, NCB that accused Rafik and Gulzar (present petitioner) will arrive at Nizamuddin railway station for going to Mumbai with bags carrying huge quantity of charas. Thereafter on the direction of Superintendent, raiding team was constituted. On reaching railway platform, the raiding team checked the platform and noticed at around 1530 hours that suspect Rafik and Gulzar (present petitioner) were going to Mumbai by train No. 12954.

3. Thereafter in presence of independent witnesses accused Rafik and petitioner Gulzar were stopped along with the third person accused Ramdev who was carrying the trolley bag. Accused Ramdev disclosed that he is a travel agent and the bag which he was carrying was of Rafik. Rafik also disclosed that trolley bag was his bag. Nothing incriminating was recovered from the personal search of accused persons however on opening the trolley bag and removing the cardboard brown colour 27 packets concealed in the bottom of trolley bag were recovered. The packets were containing charas having total weight of 6.2 Kg. On preliminary inquiry, accused Rafik disclosed that the said charas was given to him by accused Jay Haresh resident of Kullu and one Neel Chand Neelu.

4. Thereafter on 06.11.2017 at about 05.45 AM, NCB team of Chandigarh apprehended accused Jay Haresh, and in his statement/s 67, he disclosed that he had purchased 1 kg of charas from Neel Chand and Purushottam @ Kalu, and used Rafik and Gulzar (present petitioner) as his carriers and deposited the money from illicit selling charas in bank accounts of Neel Chand and Ramesh Kumar.

5. Thereafter statement of Ramesh Kumar u/s 67 was recorded in which he disclosed that accused Jay Haresh is doing illegal charas trafficking with his father and his father had also sent charas to Mumbai for Jay Haresh and Jay Haresh deposited sales money in the account of his father and in his own account. Thereafter, on the basis of their statements and recovery effected from co-accused Rafik, petitioner Gulzar and Ramdev, were arrested.

6. Accused Rafik and petitioner Gulzar in their statements disclosed that accused Rafik was having mobile number 9816171284 and the said mobile number was found to be in contact with mobile no. 9811572489 belonging to accused Gaurav Kumar. Accused Rafik admitted that the said number belongs to Gaurav Kumar. Accused Gaurav Kumar also in his retraction statement admitted that the said mobile number was his and it was found to be in the name of Sanjay Raj, father of accused Gaurav Kumar. Accused Rafik admitted that mobile no. 973541856 belongs to Neel Chand and the said mobile number was found to be in contact with mobile nos. 9816171284 9811572489 belonging to Rafik and Gaurav Kumar. The mobile number of Ramdev was found to be in contact with accused Rafik. Accused Jay Haresh Somaiya disclosed that mobile nos. 8527729534 and 9818277386 were provided by accused Ramdev, though they were issued on other person's identity.

7. Accused Jay Haresh in his statement u/s 67 disclosed that mobile no. 9857171756 belongs to Gulzar (present petitioner). Accused Rafik in his statement u/s 67 admitted that mobile no. 8433574919 belongs to accused Jay Haresh. The CRCL report gave positive test for charas. Accused Neel Chand despite sending notices u/s 67 did not appear thereafter warrants were obtained and later on he was declared PO. However, during investigation accused Gaurav Kumar was found to have taken three packets of charas from accused Rafik on 05.11.20