Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 3688

IN THE HIGH COURT OF DELHI AT NEW DELHI
Vikas Mahajan, J.
Deepak Nagiya – Appellant
Versus
State (NCT of Delhi) – Respondent
Bail Appln. 1716 of 2023
Decided On : 13-09-2023

Advocates appeared:
Mr Mir Akhtar Hussain and Ms Sonia Goswami, Advocates, for the Petitioner.
Mr. Amol Sinha, ASC, for the State with Mr Kshitiz Garg, Mr Ashvini Kumar and Ms Chavi Lazarus, Advocate with SI Om Prakash, PS ANTF, Crime Branch.

The lack of recovery of contraband from the accused and the grant of bail to co-accused on the same grounds can be considered in favor of granting anticipatory bail.

Headnote:
NDPS Act - Sections 21/25/29 - The case is registered under these sections. The prosecution relies on the recovery of contraband heroin from the accused and the disclosure statements of co-accused to establish the petitioner's involvement. The court examines the evidence and finds that there is no recovery from the petitioner and that the disclosure statement is the only incriminating material. The court also considers the CDR analysis, but states that its evidentiary value will be determined at the trial stage. The court concludes that the petitioner has made out a case for anticipatory bail.
Fact of the Case:
The petitioner is seeking anticipatory bail in a case registered under Sections 21/25/29 of the NDPS Act. The prosecution's case is that contraband heroin was recovered from the pocket of the accused Surender @ Bhalu. The accused disclosed that he used to sell heroin from his niece's house, who was subsequently arrested and contraband was recovered from her. Further investigation revealed that she procured heroin from another person, who in turn procured it from the petitioner. The petitioner argues that he has not been implicated in any recovery and that the case against him is a result of extortion and false implication by the police. The police personnel involved have been arrested for accepting bribes. The petitioner seeks anticipatory bail.
Finding of the Court:
The court examines the evidence and finds that there is no recovery of contraband from the petitioner. The disclosure statement of the co-accused, which is not admissible per se, is the only incriminating material against the petitioner. However, the co-accused has already been granted bail on the ground of no recovery. The court also considers the CDR analysis, but states that its evidentiary value will be determined at the trial stage. The court concludes that the petitioner has made out a case for anticipatory bail.
Ratio Decidendi: The court grants anticipatory bail to the petitioner based on the lack of recovery of contraband from him, the grant of bail to the co-accused on the same grounds, and the possibility of false implication due to the involvement of police personnel in bribery.
Result: The court grants anticipatory bail to the petitioner, subject to certain conditions.

JUDGMENT

Vikas Mahajan, J. This is an application under Section 438 CrPC read with Section 482 CrPC seeking anticipatory bail in FIR No.0077/2023 under Sections 21/25/29 of the NDPS Act registered at PS Crime Branch.

2. The case of the prosecution as borne out from the status report dated 08.07.2023 filed by the State in the present bail application is as under:

"1. Briefly stated, facts of the case are that on 21.03.2023, ASI Neeraj Rana along with staff had departed for developing information about crime and criminals in the area of Delhi vide GD No.91A, P.S Crime Branch. At about 03.30 p.m., when the police team reached near Industrial Area, Pump house, Mangolpuri Railway Station, the secret informer met the ASI and informed that at about 04:00 PM to 04:30 P.M, one person namely Surender Singh@ Bhalu r/o J.J. Colony Hastsal, Uttam Nagar, age 48/49 years, who indulges in supply of contraband Heroin in Delhi would be coming at unauthorized parking opposite side of Jiwan Charitable Hospital, R-Block Mangolpuri, Delhi to deliver Heroin to someone & if raid is conducted both of them can be apprehended. The secret information was noted down by the ASI in compliance of Section 42 NDPS Act and the same was communicated to Inspr. Jai Bhagwan, Anti-Narcotics Task Force, Crime Branch through mobile phone, who further passed on the information to Sh. Naresh Kumar, ACP/AGS, Crime Branch. Approval was given by ACP/AGS, Crime Branch to take necessary action and the same was conveyed back by lnsp. to ASI Neeraj Rana. A GD entry vide No. 133 A dated 21.03.2023, PS Crime Branch was made in this regard by Inspr. Jai Bhagwan, in further compliance of Section 42 NDPS Act. ASI Neeraj Rana gave the information to Insp. Jai Bhagwan, ANTF through mobile phone, who further passed the information to Sh. Naresh Kumar, ACP AGS, Crime Branch. Approval was given by ACP/AGS, Crime Branch to take necessary action and Insp Jai Bhagwan lodged this information vide GD No.0135 A in compliance of 42 NDPS Act. Thereafter, Insp. Jai Bhagwan called ASI Neeraj Rana through Mobile phone laid a trap at the place of information. At about 04.15 P.M, after reaching at the place of information, one person was found standing in the parking and he was identified as Surender @ Bhalu by secret informer. He was apprehended by the raiding team and during enquiry, his identity was revealed as Surender @ Bhalu S/o Sh. Mahipal R/o 8-504 JJ Colony, Hastsal, Uttam Nagar, Delhi, age 49 years. ASI Neeraj Rana gave him introduction and that of the raiding team members. He was also informed about the secret information. Then, the apprehended person was informed by ASI that there were chances of recovery of contraband from his personal search but prior to his search, he can take the search of police team as well as vehicle of team, to which he denied. He was also informed about his legal rights that if he so requires, he can be taken before any nearest Gazetted officer or Magistrate for his personal search and notice u/s 50 NDPS Act was served upon him. He was explained the meaning of Gazetted officer and Magistrate. However, Surender Singh @ Bhalu refused to be searched before any Gazetted officer or Magistrate & wrote his refusal on the notice and signed it in Hindi. Efforts were made by the ASI to rope in public witnesses. However, none joined the police raid.

2. Thereafter, during search of Surender @ Bhalu, one weighty ziplock polythene pouch containing brown color powdery substance was recovered from the right side pocket of his worn pant. The recovered substance was checked with the help of field testing kit and found to be contraband Heroin. Upon weighing, separately, the weight of Heroin and polythene pouch was found 350 gram & 3 gram respectively. Thereafter, recovered heroin was put back in the same polythene pouch. The polythene pouch was kept in a small plastic box and made a parcel/pulanda after wrapping it with Doctor tape. The parcel/pulanda was marked as 'A' and sealed th