Delhi High Court - Orders
Abhishek Chauhan vs Narcotics Control Bureau on 29 July, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~82
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 461/2024
ABHISHEK CHAUHAN .....Petitioner
Through: Ms. Sushma Sharma, Mr. Girish
Kumar Sharma, Mr. Dhruv Kumar
Sharma, Ms. Aayushi Gaur and Mr.
R. Sahil, Advocates.
versus
NARCOTICS CONTROL BUREAU .....Respondent
Through: Mr. Shashwat Bansal, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 29.07.2024 By way of the present petition filed under section 439 of the Code of Criminal Procedure 1973, the petitioner seeks regular bail in Case No.VIII/01/DZU/2022 registered under sections 8(c)/20/22(c)/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ('NDPS Act') by the Narcotics Control Bureau ('NCB').
2. Notice on this petition was issued on 07.02.2024.
3. Status report dated 12.03.2024 has been filed in the matter.
4. Ms. Sushma Sharma, learned counsel appearing for the petitioner submits, that the petitioner's name has been brought into the matter only on a statement of one Ramith Nair recorded under section 67 of the NDPS Act, but no recovery of any contraband has been made from the petitioner even pursuant to such disclosure. It is submitted This is a digitally signed order. BAIL APPLN. 461/2024 Page 1 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:46 that, in fact, the NCB's narrative is that they had received information via e-mail that contraband belonging to the petitioner could be traced to a guest house in Krishna Colony, Sector 72, Noida.
5. Ms. Sharma argues, that as stated in paras 8 and 9 of the status report filed in the matter, the NCB says that Ramith Nair had stated in his statement given under section 67 of the NDPS Act, that the petitioner had got Ramith Nair to store contraband for distribution at his residence in Sector 73, Noida. It is further argued, that as per what is stated by the NCB in their criminal complaint, they say that they had recovered certain quantities of MDMA, ganja, charas and LSD blots, from a certain guest house in Krishna Colony, Sector 72, Noida even before the statement of Ramith Nair was recorded under section 67 of the NDPS Act.
6. Counsel submits that therefore, there is nothing to show that the contraband was recovered at the instance of the Ramith Nair; nor is there anything to show that the contraband allegedly recovered was in any manner connected with the petitioner.
7. Furthermore, Mr. Sharma points-out that though Ramith Nair had said in his section 67 statement that he was storing contraband for the petitioner at his residence in sector 73, Noida, however no recovery is even shown to have been made from any residence but only from a guest house in Krishna Colony, Sector 72, Noida.
8. Ms. Sharma further submits, that the other allegation against the petitioner in the criminal complaint is that he had had money transactions with Ramith Nair (and with certain other co-accused persons), as tabulated in para 106 of the complaint. In response to the This is a digitally signed order. BAIL APPLN. 461/2024 Page 2 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:46 said allegation, counsel argues that the petitioner is in the business of money-lending and the transactions between the parties shown in the table arose from that business. Counsel submits, that it is also alleged that the petitioner's CDRs show his location as being the same as that of Ramith Nair on certain dates, as tabulated in para 107 of the complaint, and based on that, the allegation is that the petitioner and Ramith Nair were undertaking some transactions. Ms. Sharma draws attention to the fact that the NCB's allegation is that recoveries of contraband were made in two tranches, one on 10.01.2022 and the other on 17.02.2022. However, counsel points-out that neither the dates of the alleged financial transactions between the petitioner and Ramith Nair, nor the dates on which their CDR locations are alleged to be the same, coincide with the dates of any of the recoveries.
9. Counsel therefore submits, that there is no material filed along with the complaint to connect the petitioner with the contraband allegedly recovered.
10. Ms. Sharma also places reliance upon a view taken by a Co-ordinate Bench of this court in Lal Vedant Nath Shah Deo vs. State (NCT of Delhi)1 and in Amit Ranjan vs. Narcotics Control Bureau, Delhi2 to argue that mere money transactions between parties or CDRs showing calls or common locations between parties, does not indicate that such money transactions or locations were in relation to any drug dealing.
12023 SCC OnLine Del 652 2 2022:DHC:1985 This is a digitally signed order. BAIL APPLN. 461/2024 Page 3 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:46
11. Ms. Sharma further argues, that in its recent order dated 22.02.2024 made in Criminal Appeal No.1714/2009 titled Rajkumar Hariram Gameti vs. State of Gujarat & Anr., the Supreme Court has reiterated that a statement recorded under section 67 of the NDPS Act is on the same footing as a confessional statement made to a police officer, since a statement under section 67 of the NDPS Act is recorded by an officer invested with the powers under section 53 of the NDPS Act; and since they are police officers within the meaning of section 25 of the Indian Evidence Act 1872, a statement recorded under section 67 cannot be used as a confessional statement at a trial.
12. Counsel submits further, that in any case, a statement alleged to have been made by Ramith Nair under section 67 of the NDPS Act, cannot be read against the petitioner.
13. Ms. Sharma also points-out that another co-accused, by the name of Gurcharan, has already been admitted to regular bail by the learned Special Judge.
14. On the other hand, opposing the grant of bail, Mr. Shashwat Bansal, learned counsel appearing for the NCB submits, that considering the manner in which drug cartels operate, the material and evidence on record has to be appreciated on a cumulative basis, treating it as circumstantial evidence, to be proved in the course of trial.
15. Counsel submits, that as recited in the complaint, the petitioner's name has surfaced in the information received by the NCB from its unit in Mumbai, whereafter his name was also mentioned by Ramith Nair in the latter's statement recorded under section 67 of the NDPS Act.
This is a digitally signed order. BAIL APPLN. 461/2024 Page 4 of 8The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:46
16. Mr. Bansal has attempted to argue, that as recited in para 3 of their complaint, a parcel was booked by one Shubham Chahal for delivery to one Deepjyoti Mitra, which parcel was subsequently intercepted and found to contain contraband. Counsel submits, that as would be seen from the table appearing in para 106 of the complaint, money transactions are found to have been made by the petitioner with Ramith Nair and another co-accused Shubham Chahal.
17. Mr. Bansal submits that since Ramith Nair has named the petitioner as the person for whom he was storing and distributing contraband, it points to the petitioner's guilt.
18. Mr. Bansal stresses on the point that all contraband recovered was 'commercial quantity' and therefore the rigours of section 37 of the NDPS Act are attracted.
19. The petitioner's nominal roll dated 12.03.2024 shows that he has been in continuous custody from the time of his arrest on 19.05.2023 till date; and has thereby completed more than 14 months in prison as an under-trial. Though the nominal roll also records that the petitioner is implicated in another case under the NDPS Act, it shows that the petitioner has already been admitted to regular bail in the said other case vide order dated 08.01.2024 made by the Allahabad High Court in Criminal Misc. Bail Application No.30488/2023.
20. Upon a conspectus of the foregoing, what weighs with the court at this stage, is the following:
20.1. From the record, it appears that the petitioner's name has come into the matter only in the statement of Ramith Nair recorded under section 67 of the NDPS Act. Though the criminal This is a digitally signed order. BAIL APPLN. 461/2024 Page 5 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:46 complaint states that certain contraband was recovered from a certain guest house in Noida, that had happened even prior to recording of the statement of Ramith Nair. In any case, this statement cannot be read against the petitioner; nor can the alleged recovery of contraband be connected with the petitioner, at least at this stage;
20.2. The mere assertion by Ramith Nair that the contraband so recovered was given to him for storing and distribution by the petitioner, alone would not be sufficient to draw any inferences against the petitioner;
20.3. The money transactions alleged to have been made between the petitioner and Ramith Nair, in and of themselves, are also not sufficient to infer that the petitioner was engaged in dealing with contraband, especially since there appears to be no direct correlation between the dates of the money transactions and the recovery of contraband;
20.4. Furthermore, the CDR locations cited in the criminal complaint, to argue that such locations show that the petitioner and Ramith Nair were at one and the same place on certain given dates, also cannot be dispositive of guilt on the part of the petitioner, since the dates of such CDR locations do not co- relate with the dates of alleged recovery of contraband; and also, the CDR locations appear to lack specificity since they only describe the general location of the two persons.
21. Upon an overall consideration of the foregoing and as a sequitur to the above, the court is persuaded to allow the present petition, thereby This is a digitally signed order. BAIL APPLN. 461/2024 Page 6 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:47 admitting the petitioner Abhishek Chauhan s/o late Shri Rajender Chauhan, to regular bail on the following conditions:
21.1. The petitioner shall furnish a personal bond in the sum of Rs.
50,000/- (Rs. Fifty Thousand Only) with 02 sureties in the like amount from family members, to the satisfaction of the learned trial court;
21.2. The petitioner shall furnish to the Investigating Officer a cellphone number on which the petitioner may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;
21.3. The petitioner shall ordinarily reside at the address as per prison records.
21.4. If the petitioner has a passport, he shall surrender the same to the learned trial court and shall not travel out of the country without prior permission of the learned trial court; 21.5. The petitioner shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case. The petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial.
21.6. In case of any change in his residential address/contact details, the petitioner shall promptly inform the I.O.
22. Nothing in this order shall be construed as an expression of opinion on the merits of the pending matter.
This is a digitally signed order. BAIL APPLN. 461/2024 Page 7 of 8The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:47
23. A copy of this order be sent to the concerned Jail Superintendent forthwith.
24. The petition stands disposed-of.
25. Other pending applications, if any, are also disposed-of.
ANUP JAIRAM BHAMBHANI, J JULY 29, 2024/ak This is a digitally signed order. BAIL APPLN. 461/2024 Page 8 of 8 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/08/2024 at 23:31:47