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2024 Supreme(Online)(DEL) 10199
Page 1 of 11 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: February 09, 2024 % Pronounced on: March 01, 2024 + BAIL APPLN. 2396/2023 SAGAR ..... Applicant Through:
Mr.
U.A. Khan, Mr.
Tushar Upadhyaya and Mr. Manish Kumar, Advocates Versus STATE NCT OF DELHI ..... Respondent Through:
Mr. Ajay Vikram Singh, APP for the State with SI Abdul Barkat, Crime Branch/ANTF.
CORAM: HON'BLE MR. JUSTICE SAURABH BANERJEE
The main legal point established is that an officer of gazetted rank under Section 42 of the NDPS Act need not be a 'Gazetted Officer' in the literal sense, and compliance with Section 50 and NCB Handbook guidelines are matters for trial and premature for bail consideration.
Headnote:
NDPS Act - Regular Bail - The court analyzed the provisions of Section 42 and Section 50 of the NDPS Act and their compliance, and the authority of an officer holding the functionary rank of Asst. CP. The court found that an officer of gazetted rank under Section 42 need not be a 'Gazetted Officer' in the literal sense, and thus, Mr. Anil Sharma was empowered to issue an authorization. The court also held that the compliance of Section 50 and the raiding team's adherence to NCB Handbook guidelines are matters for trial and premature for consideration at the bail stage. The court emphasized that granting bail at this stage would be premature and likely to influence the trial, especially considering the recovered commercial quantity of contraband, and the applicant's history of multiple pending FIRs.
Fact of the Case:
The applicant sought regular bail in a case under the NDPS Act, alleging malafide police action and violation of statutory mandates. The State opposed bail citing the heinousness of the offence and the applicant's criminal history.
Finding of the Court:
The court found that Mr. Anil Sharma, holding the functionary rank of Asst. CP, was empowered to issue an authorization under Section 42 of the NDPS Act. It held that compliance with Section 50 and NCB Handbook guidelines are matters for trial and premature for bail consideration. The court emphasized that granting bail at this stage would be premature and likely to influence the trial, especially considering the recovered commercial quantity of contraband and the applicant's history of multiple pending FIRs.
Issues: The issues were whether an officer holding the functionary rank of Asst. CP is empowered under Section 42 of the NDPS Act, compliance with Section 50, and adherence to NCB Handbook guidelines by the raiding team.
Ratio Decidendi: The court held that an officer of gazetted rank under Section 42 need not be a 'Gazetted Officer' in the literal sense, and thus, Mr. Anil Sharma was empowered to issue an authorization. It also emphasized that compliance with Section 50 and NCB Handbook guidelines are matters for trial and premature for bail consideration.
Final Decision: The court dismissed the bail application, considering the recovered commercial quantity of contraband, the applicant's history of multiple pending FIRs, and the likelihood of influencing the trial by granting bail at this stage.
JUDGEMENT
1. The applicant, vide the present application under Section 439 of the Code of Criminal Procedure, 19731, seeks regular bail in FIR No.189/2022 dated 30.08.2022 registered under Sections 21/25 of the Narcotic Drugs and Psychotropic Substances Act, 19852 at Police Station Crime Branch, Delhi.
2. As per FIR, on 30.08.2022, Inspector Harivansh Singh directed a team to investigate drug trafficking in Delhi NCR. The raiding team, led by ASI Ravinder Kumar while stationed at Pole Star Public School, Mangolpuri, received intelligence regarding the involvement of a bootlegger named Sagar, the applicant, in heroin distribution, specifically of a planned delivery near Gate no. 2 of Keshav Apartment, Rohini, Delhi by him. 1 Hereinafter referred to as ‘the Code’. 2 Hereinafter referred to as ‘NDPS Act’. Page 2 of 11
3. ASI Ravinder communicated this information to the Inspector, who after obtaining requisite permission from Mr. Anil Sharma, Assistant Commissioner of Police3/ Anti Narcotic Task Force4, directed the ASI to proceed in accordance with law. Meanwhile, in compliance of Section 42 of the NDPS Act, the same was recorded on the CCTNS. Sensing the urgency of the situation, a raid was organized to intercept the applicant’s illicit activities at the specified location.
4. On the fateful day, the informer identified a person on a cherry coloured scooty as the applicant, whereafter, the ASI approached the applicant and introduced himself and the raiding team, as also shared the intelligence received and informed him about his right under Section 50 of the NDPS Act and also offered him to search the persons on the raiding team and vehicles used by them, to which the applicant refused.
5. Upon searching the applicant, a black-coloured polythene bag was recovered from the right pocket of his bottom wear. Inside which, a transparent polythene bag containing a light-pink coloured powder was found. On testing in the field-testing kit, it was found to be heroin weighing 300 grams, including transparent polythene bag. The recovered contraband was carefully documented, packaged, sealed as evidence and labelled as Parcel A by ASI Ravinder Kumar. However, no contraband were recovered on search of the scooty of the applicant. This led to the registration of the present FIR.
6. Of the various grounds raised by the learned counsel for the applicant, the learned counsel has primarily submitted that since the police acted with malafide by implicating the applicant in a frivolous criminal case and his 3 Hereinafter referred to as ‘Asst. CP’. 4 Hereinafter referred to as ‘ANTF’. Page 3 of 11 continued incarceration after arrest is ultra vires of his fundamental rights enshrined in Part III of The Constitution of India. He further submitted that the applicant was nabbed from Mangolpuri, Delhi and taken to Narcotic Cell Crime Branch, Delhi, where he was forced to sign on a blank paper.
Moreover, contrary to the FIR, as no personal search or proceeding was conducted at the spot the same is in blatant violation of the statutory mandate of the NDPS Act.
7. Learned counsel highlighted the violation of Section 42 of the NDPS Act by the respondents in light of the fact that the raiding team was constituted on the directions of Mr. Anil Sharma, Asst. CP in the ANTF, who was not a gazetted officer on the date of proceedings and was merely holding the functional rank of Asst. CP in the capacity of an Inspector. He, thereafter, drew attention to the letter dated 06.07.2022 of the Office of the Commissioner of Police, Delhi5, whereby Mr. Anil Sharma was only assigned the functional rank of the Asst. CP, and was yet to be notified in the Official Gazette. To further buttress his argument, he also drew attention to the Circular No. 02/2023 dated 10.01.2023 issued by the CP, Delhi whereby a clarification was issued that the officers holding non-substantive ranks i.e. functional, look after, special grad
