1.

The present petition has been filed under Section 439 CrPC seeking

regular bail in FIR No.0240/2022 under Sections 20/29 of the NDPS Act [in

short “the Act”] registered at PS Naraina.

VIKAS MAHAJAN, J.

2.

The case of the prosecution as borne from the chargesheet is that on

the basis of a secret information received by ASI Mohan Lal on 04.05.2022,

co-accused Rakesh was intercepted at around 06:08 AM along with two bags

at Nariana village, New Delhi and 21.084 kg. of ganja was recovered from

ARUNA KANWAR

07.12.2023

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BAIL APPLN. 1692/2023 Page 2 of 25

his possession. During the investigation it was found that the real name of

co-accused Rakesh Singh is Tarkeshwar Prashad Shah S/o Shiv Nath Shah,

R/o VPO-Mohamadpur, PS Manjhi, Chhapra, Bihar and he has changed his

identity as he had been previously involved in NDPS cases.

3.

During the course of further investigation, co-accused Tarkeshwar

Prashad Shah disclosed that he used to procure ganja from one Gagan Jha

and used to sell it by making small packets i.e. pudiya. Later, when Gagan

was caught by police, he made direct contact with Awadesh Yadav (the

present petitioner) and Manish Kumar @ Prince Bharti and started

purchasing ganja from them and he would sell the same in Delhi.

4.

On the basis of the disclosure statement of co-accused, Rakesh, a

raiding team went to the house of the petitioner on 08.05.2022 with the local

police at his village Rasulpur, PS Rasulpur, Chappra, Bihar. When the

raiding party rang the bell of the house, the petitioner saw the raiding team

and threw two bags on the road. The members of the raiding team

apprehended the petitioner and also recovered the bags thrown by him. The

two bags were opened and checked and they were found containing ganja

weighing 600 gm and 228 gm, respectively. Thus, total of 828 gm ganja

was recovered from the petitioner. The petitioner was, thereafter, arrested.

5.

Learned counsel for the petitioner submits that ganja weighing 21.084

kg. recovered from co-accused Tarkeshwar Prashad Shah @ Rakesh Singh

cannot be added to the quantity of 828 gm. of ganja, which has been

recovered from the petitioner. He submits that the recovery of contraband

from the petitioner is a small quantity and by adding the quantity recovered

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BAIL APPLN. 1692/2023 Page 3 of 25

from co-accused Rakesh, the rigors of section 37 of NDPS Act cannot be

extended to the petitioner. In support of his submission, the learned counsel

relies upon the decision of a Coordinate Bench of this Court in Anita vs.

State of NCT [Bail Appln. 1538/2022, order dated 20.07.2022] and Anita @

Kallo vs. The State (NCT of Delhi) [Bail Appln. 957/2023, DOD

18.07.2023] in which another Coordinate Bench of this Court relying upon

the decision of Anita (supra) held that the recovery made from the petitioner

therein could not be clubbed with the recovery made from the co-accused

and accordingly, rigors of Section 37 of the NDPS Act would not apply in

the facts and circumstances of that case.

6.

He submits that there is no direct recovery from the petitioner,

inasmuch as, the recovery of 828 gm of ganja is from the street on the back

side of the petitioner’s house, therefore, the petitioner cannot be said to be in

conscious possession of the contraband.

7.

He further submits that the prosecution has based its case upon the

bank transactions and call details between the petitioner and co-accused

Rakesh. He places reliance on the decision of Haresh Rawal vs. NCB: 2021

SCC OnLine DEL 3007 (decided on 03.06.2021), to contend that question

regarding call detail and chats is to be tested during trial.

8.

Further, relying upon the decision of Bharat Chaudhary vs. Union of

India: 2021 SCC On