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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Sheela - Appellant
Versus
State Govt. of NCT of Delhi - Respondent
Bail Appln. 1309 of 2023 and Bail Appln. 1689 of 2023
Decided On : 11-10-2023
BAIL - Narcotic Drugs and Psychotropic Substances Act - 20/29/61/85 - The court discussed the provisions of the NDPS Act, including Section 20(C) read with Section 29, Section 52A, and Section 50, and their interpretations in the context of possession, conscious possession, delay in filing applications, and compliance with search procedures. The court emphasized the importance of conscious possession and the joint possession of contraband by the accused, as well as the applicability of bail conditions under Section 37 of the NDPS Act.
Fact of the Case:
The applicants sought bail in a case involving the illegal supply of Ganja under the NDPS Act. The prosecution alleged a criminal conspiracy for the supply of Ganja, and recoveries of contraband were made from all the accused persons.
Finding of the Court:
The court found that the accused were in joint possession of the contraband and were acting together, leading to the conclusion that bail conditions under Section 37 of the NDPS Act were not satisfied.
Issues: The quantity of recovered Ganja, delay in filing applications under Section 52A, and compliance with Section 50 of the NDPS Act were key issues.
Ratio Decidendi: The court emphasized the importance of conscious possession, joint possession, and compliance with procedural requirements under the NDPS Act in determining bail eligibility.
Final Decision: The bail applications were dismissed, and the applicant on interim bail was ordered to surrender within one week.
JUDGMENT
BAIL APPLN. 1689/2023 & BAIL APPLN. 1309/2023
1. By way of the present applications, the applicants seek regular bail in FIR No.251/2022 dated 20th April, 2022 under Sections 20/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) registered at Police Station Sarita Vihar. BAIL APPLN. 1309/2023 has been filed on behalf of Sheela and BAIL APPLN. 1689/2023 has been filed on behalf of Iqbal.
2. The case set up by the prosecution is as under:
i. A secret information was received at Police Station Sarita Vihar on 20th April, 2022 regarding illegal supply of Ganja.
ii. A raiding party was constituted and a raid was conducted. During the raid, three people namely, Vinod, Iqbal and Sheela were apprehended travelling in a three-wheeler. Vinod and Sheela were sitting on the back seat while Iqbal was driving the auto. Both the accused persons sitting at the back had one bag each between their legs.
iii. Both the carry bags were seized, sealed and taken into possession and all the accused persons were arrested.
iv. Samples were drawn and sent for testing. As per the FSL report, the samples were found to be Ganja.
v. After the completion of the investigation, chargesheet was filed. The FSL report was filed through supplementary chargesheet.
vi. Vide order dated 29th August, 2023, charges have been framed against all the three accused persons under Section 20(C) read with Section 29 of the NDPS Act which deals with commercial quantity.
3. Vide order dated 2nd May, 2023, interim bail was granted to Sheela which has been extended from time to time and continues till date.
4. On behalf of Sheela, it has been submitted that she was apprehended with a bag containing 14.13 kg of Ganja, which is an intermediate quantity. The co-accused Vinod had a hand bag which contained 24.20 kg of Ganja which is a commercial quantity. It is submitted that the quantity recovered from the co-accused cannot be added to the quantity recovered from Sheela and therefore rigours of Section 37 of the NDPS Act will not apply in the present case. Reliance in this regard is placed on order of the Coordinate Bench in Anita v. State (NCT of Delhi) in BAIL APPLN. 1538/2022 decided on 20th July, 2022, Anita @Kallo v. State (NCT of Delhi) in BAIL APPLN. 957/2023 decided on 18th July, 2023 and Mohd. Ali Nawaz v. State in BAIL APPLN. 1305/2023 decided on 17th August, 2023.
5. It is further submitted that the application for taking samples under section 52A of the NDPS Act was filed in a delayed manner. Whereas the applicants were arrested on 20th April, 2022, the application under section 52A was filed on 28th April, 2022 after a delay of 8 days. Reliance in this regard is placed on the judgment of the Coordinate Bench in Sarvothaman Guhan @Sarvo v. Narcotics Control Bureau in BAIL APPLN. 2879/2022 decided on 13th September, 2023 and Kashif v. Narcotics Control Bureau in BAIL APPLN. 253/2023 decided on 18th May, 2023.
6. Additionally, the applicant in BAIL APPLN. 1689/2023, Iqbal seeks bail on the ground that nothing was recovered from him and he was merely an auto driver. He further submits that a search in terms of Section 50 of the NDPS Act has not been conducted on him and therefore, he should be enlarged on bail.
7. It is submitted by the counsels that the chargesheet has already been filed and there is no possibility of the applicants tampering with the evidence and therefore, the applicants should be enlarged on bail. 8. Per contra, learned APP submits that all three accused persons entered into a criminal conspiracy for supply of Ganja. As per the CDRs, all three accused were in touch with each other. Further, recoveries of contraband have been affected jointly from all the accused persons. Reliance in this regard has been placed on the judgment of the Supreme Court in Union Of India v. Md. Nawaz Khan in Criminal Appeal No.1043/2021 decided on 22nd September, 2021.
9. Learned APP submits that whether there was any delay in filing an application under
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