The intercepted conversation and the presumption of culpable mental state under section 35 of the NDPS Act were central to the court's decision in rejecting the bail application.

JUDGMENT

Tushar Rao Gedela, J.

[The proceeding has been conducted through Hybrid mode]

1. This is a bail application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.') filed by the applicant seeking regular bail in the case titled as "State Vs Sunil Kumar & Ors." arising out of F.I.R. No. 09/2019 dated 16.01.2019 under sections 22/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act') registered with Police Station Special Cell (SB), Delhi.

2. Brief facts of the case as per the prosecution are that on the intervening night of 15-16.01.2019, co-accused persons namely Lokesh Mehta and Sunil Kumar were apprehended and about 5.2 kgs of Psychotropic substance suspected to be Tramadol powder was recovered. Further on their instance, 5.5 lacs 'Alko-1' (Alprazolam Tablets IP l mg) tablets were recovered from a godown, Hari Nagar, Delhi.

3. Thereafter on 17.01.2019, at the instance of co-accused Sunil Kumar and on the basis of secret informer, their associate Satish Sahu r/o Mumbai was arrested after recovery of 5 kgs (approx.) contraband substance suspected to be Tramadol powder. On 20.01.2019, at the instance of accused Satish Sahu, accused Neeraj Arora @ Sonal along with his accomplice Rajesh Dutta @ Raj was apprehended and 200 gms of Ketamine was recovered from conscious possession of accused Neeraj Arora @ Sonal.

4. Thereafter, a raid was conducted at the house of accused Neeraj Arora @ Sonal where manufacturing material of drugs i.e. 100 pieces of Ketajet, 50 injections IP, 10 pieces of LOX injections IP, 1.080 kg suspected to be Amphetamine powder were recovered. Thereafter, a raid was conducted at their godown and total of 7,94,500 Tramadol tablets were recovered which were concealed in 78 blue coloured plastic drums within rice packets.

5. During investigation, accused Neeraj Arora @ Sonal disclosed that he was directly connected with Vishal Singh, the applicant herein, who constrained him to set up the production of Ketamine. He further disclosed that after production of Ketamine, he used to supply that Ketamine to Vishal Singh who used to further supply Ketamine to his contacts to Mumbai and London.

6. As per the prosecution, the mobile number of co-accused Neeraj Arora @ Sonal was under legal interception through which he was in touch with the applicant, Vishal Singh who was using mobile number 8929739372, 9818690327 and 9999002245. Another co-accused, Rajesh Dutta also named the applicant, Vishal Singh in his disclosure statement.

7. The applicant Vishal Singh was found avoiding arrest therefore, on 18.12.2019, the Learned Special Judge (NDPS) issued NBW against the applicant on an application moved by the IO. The applicant was declared as a Proclaimed Offender by the order dated 09.03.2021 of the learned Trial Court.

8. Thereafter, based upon secret information, a raid was conducted at Shop No. 58, DDA Complex, Village-Naraina, New Delhi, from where the applicant was finally arrested on 29.03.2022. The applicant's voice sample was obtained by FSL officials at FSL, Rohini, Delhi.

ARGUMENTS ON BEHALF OF THE APPLICANT:

9. Mr. Rakesh Khanna, learned senior counsel for the applicant draws attention of the court to the Non Recovery Memo to submit that there is no recovery of any contraband effected from the applicant and he has been apprehended only on the basis of disclosure statements of the co-accused persons viz. Neeraj Arora and Rajesh Datta.

10. He submits that the recovery of the contraband was effected from the co-accused Neeraj Arora @ Sonal and other co-accused persons and such recovery of contraband cannot be attributed to or linked with the applicant from whom nothing has been recovered. Learned senior counsel relies upon the order of the Co-ordinate Bench of this Court dated 28.07.2022 in BAIL APPLN. 495/2022 titled Sunil Vs. The State of NCT of Delhi to submit that the individual recovery has to be considered while