JUDGEMENT

1.The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘ CrPC ’) seeking grant of regular bail in FIR No. 359/2019 dated 28.12.2019 registered at Police Station Crime Branch for offence under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘ NDPS Act ’). Chargesheet has been filed against the applicant for offence under Section 20 of the NDPS Act.

Brief Facts

2.The case of the prosecution is that, on 28.12.2019, SI Vikrant received information about the applicant, who allegedly used to supply ‘charas’ in Delhi after procuring it from Himachal Pradesh. It is alleged that the information was received that between 3:30PM to 4:30PM, the applicant would come to supply ‘charas’ to someone near Sanjay Akhada, Outer Ring Road, near Gurudwara at Majnu ka Tila, Delhi.

3.It is alleged that the information was reduced in writing vide DD No.6 at 2:15PM in compliance with Section 42 of the NDPS Act.

It is alleged that at about 4:10PM, a raid was conducted and the applicant was apprehended.

4.A notice under Section 50 of the NDPS Act, was served upon the accused, and the refusal of the accused was recorded thereafter. It is alleged that during the search, one bag was recovered from the applicant’s possession, from which 1.1kg charas, concealed in two packs of 550 grams each was recovered.

5.The alleged recovery is of commercial quantity of contraband.

6.Upon completion of the investigation, the chargesheet in the present case was filed against the applicant and the co-accused, under Section 20 of the NDPS Act, and charges were framed by the learned Trial Court.

7.The learned Trial Court dismissed the regular bail application moved by the applicant vide order dated 12.01.2022, hence the present application.

Submissions on behalf of the applicant

8.The learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. He submits that there are serious infirmities in the case of the prosecution. He submitted that even though the purported recovery happened in a public place, there are no independent witnesses.

9.He submitted that the CDR filed by the prosecution itself (from Airtel) of the applicant’s mobile number reveals that incoming and outgoing calls were being made from the number until 6:00PM whereas the prosecution story is that the applicant was apprehended around 4:15PM.

10.He submitted that Section 50 of the NDPS Act has not been complied with. The notice under Section 50 of the NDPS Act, purportedly served on the applicant on 28.12.2019, bears the FIR number at the top, even though the FIR was yet to be registered when the applicant was purportedly searched around 4.10PM, as per the case of the prosecution.

11.He further submitted that that non-reference of the word ‘nearest’ in the notice served upon the applicant under Section 50 of the NDPS Act makes the notice defective entitling the applicant to be released on bail. In support of the said contention, the learned counsel for the applicant relied upon the judgment passed by the coordinate bench of this Court in the case of Mohd. Jabir v. State (NCT of Delhi) : 2023 SCC OnLine Del 1827 .

12.He submitted that in the present case, upon seizure, the compliance of Section 52A of the NDPS Act was not made and the sampling procedure was not carried out before the learned Magistrate.

13.He submitted that the applicant has satisfied the bar under Section 37(1)(b)(ii) of the NDPS Act of establishing reasonable grounds for believing that he is not guilty of an offence.

14.He submitted that the applicant has been in custody for more than 4 years and relied upon the observations of the Hon’ble Supreme Court in Mohd. Muslim v. State (NCT of Delhi) : 2023 SCC OnLine SC 352 . He submitted that the applicant has clean antecedents and deep roots in the society and there is no possibility of the applicant influencing