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IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J.
Bhaskar Khatnani – Appellant
Versus
Narcotics Control Bureau – Respondent
Bail Appln. 597 of 2020
Decided On : 17-08-2023
Narcotics Control Bureau - Bail Application - Code of Criminal Procedure,1973 - Sections 21(c), 23 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 - [SUMMARY OF ACTS AND SECTIONS REFERENCED: The court discussed the provisions of Section 439 of the Code of Criminal Procedure, 1973 and Sections 21(c), 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The court also referred to the Indian Evidence Act, 1872 and the fundamental right guaranteed under Article 21 of the Constitution of India. The court emphasized the inadmissibility of confessions made to NDPS officers by the accused and the overriding of the statutory embargo created under Section 37 of the NDPS Act by the fundamental right guaranteed under Article 21 of the Constitution of India.]
Fact of the Case:
The applicant filed a bail application seeking regular bail in a case under Sections 21(c), 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that the applicant was involved in a drug trafficking racket and was apprehended based on the disclosure statement of a co-accused. The prosecution claimed recovery of fake stickers of medicines from the applicant's house, but no contraband was recovered from the applicant's possession.
Finding of the Court:
The court found that no contraband was recovered from the possession of the applicant and that the applicant was arrested based on the disclosure statement of a co-accused. The court also noted discrepancies in the timings and material alleged to have been recovered, raising doubts about the prosecution's case against the applicant. The court emphasized the inadmissibility of confessions made to NDPS officers by the accused and the overriding of the statutory embargo created under Section 37 of the NDPS Act by the fundamental right guaranteed under Article 21 of the Constitution of India.
Issues: The issues included the recovery of fake stickers of medicines from the applicant's house, the involvement of the applicant in a drug trafficking racket, and the admissibility of the disclosure statement made by the applicant.
Ratio Decidendi: The court held that the inculpatory part of the disclosure statement made by the applicant was inadmissible and that the statutory embargo under Section 37 of the NDPS Act was not applicable. The court also considered the prolonged incarceration of the applicant and the fundamental right guaranteed under Article 21 of the Constitution of India in granting bail.
Final Decision: The court granted the applicant regular bail on stringent conditions, including surrendering the passport, cooperating in the trial, refraining from criminal activity, providing mobile number(s) to the Investigating Officer, and informing about travel outside Delhi-NCR.
JUDGMENT
Tushar Rao Gedela, J.
[The proceeding has been conducted through Hybrid mode]
1. The applicant has filed the present bail application under Section 439 of Code of Criminal Procedure,1973 seeking grant of regular bail in Case No. SC/81/19 titled "Narcotics Control Bureau Vs. Gaurav Mehta & Ors." under Sections 21(c), 23 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, pending before the Court of learned Special Judge, NDPS Court, New Delhi.
2. The allegations as set out in the case of the prosecution are that a recovery was made from the house of one accused Gaurav Mehta, who was then arrested and it was on his disclosure statement that the respondent NCB apprehended the applicant Bhaskar Khatnani on 17.08.2018. Upon applicant's statement recorded on the same day, a further recovery at Laxmi Nagar Metro Station was made from one of the delivery boys.
3. As per the prosecution case, a secret information was received on 17.08.2018 in respect of two parcels destined to USA and Canada respectively lying at DHL Express, Rama Road, Kirti Nagar, New Delhi booked by one Gaurav Mehta of Desi Global E Mart. The parcels were suspected to contain narcotics/psychotropic tablets. Further, it was also learnt that the accused Gaurav Mehta was continuously sending narcotics/psychotropic medicines from his office cum warehouse at K-121, Backside, West Patel Nagar, New Delhi.
4. As per the Panchnamas dated 17.08.2018, a search was first conducted at the DHL office and then at K-121, West Patel Nagar, New Delhi wherefrom a huge quantity of transparent plastic polythenes containing white colour tablets were recovered. On asking the accused Gaurav Mehta, he disclosed that these are vellum tablets, which he used to send abroad through parcel and further disclosed that these tablets were provided to him by Bhaskar Khatnani who resides in Gurgaon, with Amit Ranjan and some other persons.
5. On further search of the room, one transparent plastic polythene containing white tablets were recovered on which Xanax was written and on further checking the racks of the said room, packets containing different tablets i.e. Alprazolam, Lorazepam, Phentamine, V.C. Don, Clonazepam along with 4 parcels ready to be sent to different foreign destinations were recovered. The total weight of Tramadol recovered was more than 250 gms and the same is a commercial quantity.
6. Accused Gaurav Mehta, in his statement under section 67, NDPS Act recorded on 18.08.2018, disclosed that the medicines recovered from his house were provided by Bhaskar Khatnani. The accused further stated that Bhaskar Khatnani used to supply 20-25 packets per week to him and on the instructions of Bhaskar Khatnani, he used to pick up tablets in strip and lose form of Phentermine, Butalbital, Viagra, Cialias, Tramadol, Zolpidem, Adderall, Hydrocodone etc. from Laxmi Nagar which were provided by accused Manish Mohan through accused Amit Ranjan.
7. The accused Gaurav Mehta further disclosed that he lifted the medicines from the house of Bhaskar Khatnani also, and the parcel that has been recovered from DHL were destined to USA and Canada and were sent by him. Thereafter, on his disclosure, the applicant herein was apprehended and his house was searched, and forged printed stickers of Xanax, Alprazolem, Hydrocodone Bilartrate, Acetaminophen and Zolpidem Tratrate were recovered.
ARGUMENTS ON BEHALF OF THE APPLICANT:
8. Mr. Yogesh Kumar Saxena, learned counsel for the applicant submits that the accused/applicant was arrested on 18.08.2018 and was sent to judicial custody on 19.08.2018.
9. It is submitted by the learned counsel that nothing was recovered from the applicant and the contraband materials/tablets were recovered from the accused Gaurav Mehta, the applicant in BAIL APPLN. 1257/2022.
10. He also submits that no statement of the applicant was recorded on 17.08.2018 and that he was arrested on 18.08.2018 and disclosure statement was recorded only thereafter.
11. The le
The judgment emphasizes the importance of liberty and the need to avoid pre-conviction incarceration, balancing the recovery of contraband with the potential innocence of the accused and the impact o....
Admissibility of evidence, commercial quantity of contraband, and likelihood of the applicant to commit similar offences while on bail.
The admissibility of evidence, the impact of prolonged incarceration on bail, and the need for substantial evidence to establish allegations.
The recovery of contraband, admissibility of section 67 statement, and relevance of forensic mobile extraction report and chats were central legal points established in the judgment.
The court held that confession statements under the NDPS Act require corroborative evidence, and prolonged pre-trial detention with no contraband recovery justifies granting bail.
The judgment emphasizes the principles of innocence until proven guilty, the need for substantive evidence to establish guilt, and the limitations on the admissibility of disclosure statements withou....
The court emphasized strict compliance with procedural safeguards under the NDPS Act, highlighting that significant lapses can undermine the prosecution's case, especially in light of prolonged incar....
The main legal point established is the inadmissibility of retracted statements under Section 67 of NDPS Act and the need for corroboration of evidence in drug-related cases.
A confessional statement made before an officer designated under Section 42 or Section 53 of the NDPS Act cannot be the sole basis for conviction without safeguards. Even in cases involving commercia....
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