* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 21^st March 2023 Pronounced on: 11^th April, 2023 + BAIL APPLN. 530/2023 MUNISH GAUTAM ..... Petitioner Through: Mr. Akshay Bhandari and Mr. Anmol Sachdeva, Advocates.

versus STATE GOVT OF NCT OF DELHI ..... Respondent Through: Mr. Ritesh Kumar Bahri, APP for the State SI Manish Kumar,PS:

Crime Branch.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT

1. By this bail application, the petitioner seeks regular bail in FIR No.47/2019 registered at PS Crime Branch under section 20 of the NDPS Act. The petitioner is in custody since 6^th March2019, wherein the charge-sheet has been filed and the case is pending trial for prosecution evidence. 4 out of 14 witnesses have been examined.

2. The case of the prosecution is that on 5^th March 2019, upon receipt of information, the petitioner, who allegedly used to supply charas, was apprehended near International Guest House, Delhi University at about 5:00 p.m. Notice under section 50 of the NDPS Act was served upon him and his legal rights were explained but he refused Signature Not Verified Digitally Signed to avail the facility of presence of a gazetted officer. No psychotropic substance was recovered from his body search, however 2 kgs charas was recovered from the search of his scooter No. DL 9S AX 8053. Samples were drawn, case property was sealed and deposited in the maalkhana. The petitioner was arrested and later the samples were sent to FSL, Rohini. The result from the FSL was received which confirmed that the sealed substance was charas. The said scooter was found registered in the name of the petitioner himself.

3. Learned counsel for the petitioner states that the petitioner has been falsely framed since both the petitioner and his wife were apprehended and no incriminating article was recovered from them. A perusal of the charge-sheet would show that the petitioner was already present in the PS and was falsely framed. The prosecution had alleged that the petitioner was apprehended on 5^th March2019 and thereafter the recovered items were sent to the PS to deposit in the maalkhana through Ct. Rakesh Rathi. The maalkhana entry regarding the deposit shows the date of deposit to be 5^th March 2019. Pursuant to an RTI filed regarding the date and time of arrival of Ct. Rakesh Rathi, a reply was received stating that the constable only returned to the PS at 3:30 a.m. on 6^th March2019 which falsifies the case of the prosecution that the recovery was effected and brought to the PS on 5^th March, 2019. Further the maalkhana register itself shows that no sealed sample was ever deposited in the maalkhana. Despite the case of the prosecution that the personal search was conducted on 6^th March 2019, the articles that were recovered were deposited in the maalkhana on 5^th March 2019 itself. This would show that that the petitioner was already present in the PS and was not apprehended in the manner alleged by the prosecution. This Signature Not Verified Digitally Signed would be evident from the personal search memo dated 6^th March 2019 and the maalkhana entry of 5^th March2019 as well as the DD Entry for 6^th March, 2019. Further, it was contended that as per prosecution information regarding arrest of the petitioner was given to his wife telephonically at 3:30 a.m. on 6^th March 2019 however a perusal of arrest memo shows that it was prepared at 2:00 a.m. on 6^th March2019 and bears the signatures of his wife further showing that petitioner's wife was present in the PS even before his arrest. Also, call records of the petitioner’s wife indicate that she had not received any call from the police at that time. The petitioner's wife had filed an application for preserving the CCTV footage to show that no recovery was effected, but in the reply the police stated that the cameras were not working due to a fire and the same could not be preserved. Another application was filed for preserving the mobile tower location of the mobile of wife of the petitioner