BAIL APPLN. 1030/2021 Page 1 of 7

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 15^th July, 2021

Decided on: 24th August, 2021

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BAIL APPLN. 1030/2021

MAHMOOD KURDEYA

..... Petitioner

Represented by:

Mr. Anoop Kumar Gupta, Adv.

versus

NARCOTICS CONTROL BUREAU

..... Respondent

Represented by:

Mr. Subhash Bansal, Sr Standing

Counsel for NCB with Mr. Shashwat

Bansal, Adv.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this petition the petitioner seeks regular bail in Sessions Case No.

156/2019 under Sections 22/23/29 NDPS Act on a complaint filed by the

respondent/ NCB.

2.

Learned counsel for the petitioner contends that the petitioner is a 23

old, Syrian national staying in Delhi as refugee pursuant to the registration

and verification by the UNHCR since 2015 and has been falsely implicated

in case No. VIII/28/DZU/2018 of the respondent. Being a refugee there is no

likelihood that the petitioner can flee this country. The petitioner is in

custody since 27^th September, 2018 and the trial is likely to take a lot of

time. No recovery has been made from the petitioner and thus no case is

made out against the petitioner. Even on the personal search and search of

Digitally Signed By:JUSTICE

MUKTA GUPTA

Signing Date:24.08.2021

19:00:42

Signature Not Verified

BAIL APPLN. 1030/2021 Page 2 of 7

the house of the petitioner nothing incriminating was recovered.

3.

Learned counsel for the petitioner contends that the only evidence

linking the petitioner to the contraband recovered is the statement recorded

under Section 67 of the NDPS Act by the officer of the respondent which in

view of the decision of the Hon’ble Supreme Court in Toofan Singh Vs.

State of Tamil Nadu (2021) 4 SCC 1 is inadmissible in evidence and cannot

be used to implicate the petitioner. The statement made by the co-accused

Arjun Elawadi stands retracted. The co-accused Arjun Elawadi who was the

alleged manufacturer and supplier of the banned substance who ultimately,

financially gained from the alleged transaction has already been granted

regular bail by the Court and hence on parity the petitioner is also entitled to

bail. Further the so-called voluntary statement recorded by the NCB under

Section 67 of the NDPS Act cannot be voluntary for the reason the petitioner

neither understands Hindi nor English and admittedly no translator was

made available to the petitioner at the time of recording of the statement.

While granting regular bail to Arjun Elawadi, the learned Special Judge

noted that the said applicant has not indulged in manufacture, sale or

purchase of the contraband tablet after the notification dated 13^th July, 2018

and since the drug has allegedly been manufactured and sold prior to the

date of notification, no offence can be made out.

4.

Case of the prosecution is that on 24^th September, 2018 a secret

information was received by NCB officer that a Turkish national, namely,

Erbil Han aged about 27 years is departing from IGI Airport by Turkish

Airlines flight 717 at 0615 hours and was suspected to have concealed huge

quantity of narcotics or psychotropic drugs in his baggage. After necessary

permission from Superintendent, a team was deputed and Erbil Han was

Digitally Signed By:JUSTICE

MUKTA GUPTA

Signing Date:24.08.2021

19:00:42

Signature Not Verified

BAIL APPLN. 1030/2021 Page 3 of 7

intercepted, however nothing was recovered from his personal search. When

his red colour trolley bag was opened it was found full of tablets which were

kept in bundles of 10 strips and bound with rubber band. One of the strips

was taken out and examined. It co