JUDGEMENT

ANISH DAYAL, J.

1. This petition is filed seeking regular bail in FIR No.473/2023 at P.S. Shahbad Dairy registered under Sections 21 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘ NDPS Act ’).

2. The case of prosecution is that on 29th April 2023, secret information was received by SI Tej Singh that a lady named Kamla, resident of House No. D-18/4, Shahbad Dairy, Delhi was indulging in sale of heroin in bulk and retail. After verifying the said information, Inspector Umesh Sharma conveyed the same to senior officers who gave authorization to conduct a raid. A raiding party was constituted under the supervision of Insp. Umesh Sharma; raid was conducted at D Block, Shahbad Dairy and Kamla, aged 55 years, was apprehended at 1:14 P.M.

Notice under Section 50 of NDPS Act was served and search was conducted inside the house of accused Kamla; 260g of heroin was recovered from there. FIR was registered and further investigation was handed over to ASI Narender Kumar.

3. The prosecution contends that during investigation Kamla disclosed that she had procured heroin from petitioner/Usha. Raid was conducted at the alleged residence of Usha but she was not found at the said address. Thereafter, notice under Section 67 of NDPS Act was served at her new address i.e. H. No. 360, Fourth Floor, H-3 Block, Sector 16, Rohini, Delhi, through post. Petitioner joined investigation on 18 th August 2023 and disclosed her mobile number. During the CDR analysis, three numbers were identified i.e. one of Usha, that of her husband Ravi and of one Govinda. All these were found to be connected with Amit, son of accused Kamla. FSL was obtained and charge-sheet was filed against accused Kamla on 25th October 2023.

4. Petitioner filed an anticipatory bail application before the Trial Court which was dismissed on 1st December 2023. Later, application for anticipatory bail filed before this Court, was dismissed vide order dated 7 th February 2024. Subsequently, petitioner was declared a Proclaimed Offender vide order dated 26th February 2024. However, petitioner surrendered before the Trial Court on 12th April 2024 and was formally arrested.

5. In disclosure, she stated that she had procured heroin from one Danish and the same was supplied to Naresh and Shakti, residents of Shahbad Dairy. As per the prosecution, during the course of investigation, raid was conducted at the instance of Usha at residence of accused Shakti, who was arrested and 50g of heroin was recovered from his house.

6. APP for the State contends that the quantity recovered from Kamla is commercial and Usha was found to be in touch with her through CDR analysis. Further, Ravi, husband of petitioner/Usha, is involved in 9 criminal cases including one NDPS case and other accused are absconding and therefore, bail must not be granted.

7. Counsel for petitioner however, contends that there was no recovery from petitioner and she was arrested only on basis of alleged disclosure of Kamla. Further, the only evidence which the prosecution has presented are the calls exchanged between petitioner and Kamla’s son Amit, as per the CDR analysis. The recovery from Shakti was on alleged disclosure of petitioner.

8. It is contended that neither of these pieces of evidence with prosecution professed against petitioner can amount to her conviction in law, considering that statements in disclosure are not admissible, as per the decision inter alia of the Supreme Court of India in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, where it has been held that accused cannot be held basis merely on CDR analysis. For this, he has also relied on decisions of Coordinate Benches of this Court in Deepak Nagiya v. State (2023) SCC OnLine Del 5641 and Phundreimayum Yas Khan v. State (GNCT of Delhi) (2023) SCC OnLine Del 135.

9. He further stated that even as per prosecution, three names were disclosed by Kamla viz. U