Delhi High Court - Orders
Dharmender Singh And Anr vs State & Anr on 1 November, 2022
Author: Anoop Kumar Mendiratta
Bench: Anoop Kumar Mendiratta
$~3, 4 & 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2087/2021
DHARMENDER SINGH AND ANR. ..... Petitioners
Through: Mr. Vijay Bishnoi, Mr. Amar Phogat,
Mr. Abhimanyu Singh and Mr. Harsh
Lohia, Advocates.
versus
STATE & ANR. ..... Respondents
Through: Mr. Shashwat Bansal, Advocate for
NCB.
+ BAIL APPLN. 2940/2021
DUJENDER SINGH ..... Petitioner
Through: Mr. Vijay Bishnoi, Mr. Amar Phogat,
Mr. Abhimanyu Singh and Mr. Harsh
Lohia, Advocates.
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through: Mr. Shashwat Bansal, Advocate for
NCB.
+ BAIL APPLN. 4108/2021
PANKAJ KUMAR MISHRA ..... Petitioner
Through: Mr. Y.K. Saxena, Ms. Priya Saxena
and Mr. Swarandeep Singh,
Advocates.
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through: Mr. Shashwat Bansal, Advocate for
NCB.
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 01.11.2022
1. Three separate applications have been preferred on behalf of petitioners, namely Dharmender Singh and Dujender Singh (BAIL APPLN.
Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 1 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:492087/2021); Dujender Singh (BAIL APPLN. 2940/2021) and Pankaj Kumar Mishra (BAIL APPLN. 4108/2021), under Section 439 read with Section 482 Cr.P.C. for grant of regular bail in Case No. VIII/09/DZU/2021, under Sections 9A, 25A and Section 29 of NDPS Act, registered at PS NCB, DZU, New Delhi.
2. In brief, as per the case of prosecution, on 05.03.2021 at about 11.30 hrs., secret information was received by JIO Vijender Kumar that two persons namely Dujender Singh and Dharmender Singh, both residents of Dwarka, would be going to Red light Chowk, near Ambedkar Stadium in Alto Car bearing registration no. DL-6CP-1169 about 15.00 hrs. to deliver some narcotic substance to one Pankaj Kumar Mishra. The information was recorded in writing and a raiding team was accordingly constituted. Further about 15.00 hrs. on the same day, the suspected Alto car was seen approaching the location from Daryaganj side and going towards Rajghat. As soon as the driver of the car stopped the vehicle after crossing the red light, the NCB team approached the vehicle, on which the occupants of the team tried to run away from the location. However, the occupants were stopped and the person sitting in the driver seat, was identified as Dujender Singh, the person sitting on the co-driver seat as Dharmender Singh and the third person sitting behind as Pankaj Kumar Mishra. It is further the case of the NCB that upon enquiry, Dujender Singh pointed out towards a black colour bag which was kept on the passenger's back side seat and stated that there is drug inside the bag brought from Dwarka to be delivered to Pankaj Kumar Mishra. Upon opening the said bag, two polythene packets containing white crystal clear powder were found which on testing, tested positive for Pseudoephedrine and weighed about 3.500 kg and 3.520 kgs respectively.
Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 2 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49The panchnama proceedings were completed at the spot after completion of necessary legal formalities.
3. Learned counsel for petitioner Dharmender Singh and Dujender Singh submits:
(i). That the petitioners have been falsely implicated. Further, Dharmender Singh was working as a recovery agent in Bajaj Finserv, where petitioner Pankaj Kumar Mishra was a customer and Dharmender Singh was assigned for recovery of unpaid installments from Pankaj Kumar Mishra. Since the Covid cases were surging and mother of the petitioner was a Cancer patient, Dharmender Singh requested Dujender Singh to drive him to the residence of Pankaj Kumar Mishra, wherein Pankaj Kumar Mishra showed his inability to pay the money.
Thereafter, Pankaj Kumar Mishra requested Dharmender Singh to accompany him to Daryaganj wherein he would be selling his jewellery in order to make the payment. As such lift was given to Pankaj Kumar Mishra without being aware as to the contents contained in the bag.
(ii). It is also urged that the contraband recovered from petitioners is neither a narcotic drug nor a psychotropic substance under the NDPS Act, but a controlled substance with reference to which there is no embargo under Section 37 of the NDPS Act.
(iii). That the alleged recovery was effected from the passenger seat of the car wherein the co-accused Pankaj Kumar Mishra was seated, while petitioner Dujender Singh was present on the seat adjacent to the driver and no recovery was made from his possession.
(iv). Apart from above, it has also been submitted that there is violation of Section 60 of the NDPS Act and no public witnesses were joined. The Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 3 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49 petitioners are further stated to be in custody since 05.03.2021 and have clean past antecedents.
(v). Reliance is further placed upon:
i. Tinimo Efere Wowo vs. State Govt. of NCT of Delhi, Bail Appl. 2677/2020, decided by Hon'ble Mr. Justice Rajnish Bhatnagar, on 05.01.2022;
ii. Nastofariraiziso vs. NCB, Bail Appl. 1960/2020, decided by Hon'ble Mr. Justice Rajnish Bhatnagar on 20.04.2021; and iii. Niranjan Jayantilal Shah vs. Directorate of Revenue Intelligence, Bail Appl. 1202/2013, decided by Hon'ble Ms. Justice Sunita Gupta on 19.11.2013.
4. Learned counsel for petitioner Pankaj Kumar Mishra submits:
(i). That the petitioner is a book publisher having a Publication House in Daryaganj. Dharmender Singh, the recovery agent of Bajaj Finance Limited, used to visit the place of the applicant to collect the amount of EMI from him. On 05.03.2021, petitioner Pankaj Kumar Mishra was contacted by petitioner Dharmender Singh on his phone and asked him to meet at Bus Stop of Ambedkar Stadium at 4:00 pm. Further when the petitioner Pankaj Kumar Mishra was talking to Dharmender Singh standing outside, the front door of passenger seat, they were apprehended by NCB officers and taken into custody. Further, the petitioner was asked to sign on papers as concocted by the NCB officers.
(ii). That there is a discrepancy as to the factual seriatim of events as alleged by the NCB vis-a-vis as reflected in the remand application preferred Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 4 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49 on behalf of NCB as follows:
"On the directions of senior officers, a team of NCB officers were at the Red light Chowk near Ambedkar Stadium, Rajghat Road and two persons namely Dharmender Singh and Dujender Singh came there in the said car and accused Pankaj Kumar Mishra standing there also sat in the said car. The car was intercepted and 7.200 kg of Pseudoephedrine was recovered which was seized as per law detailed in the panchnama."
(iii). Reliance is further placed upon:
i. Ajay Aggarwal vs. NCB, Bail Appl. 2036/2004, decided by Hon'ble Mr. Justice Badar Durrez Ahmad on 20.01.2005; ii. Department of Customs vs. Hemant Kumar, CRL.M.C. 2110/2008, decided by Hon'ble Mr. Justice Manmohan on 12.09.2012;
iii. Tinimo Efere Wowo vs. State Govt. of NCT of Delhi, Bail Appl. 2677/2020, decided by Hon'ble Mr. Justice Rajnish Bhatnagar on 05.01.2022; and iv. Basheer Ahamed vs. Union of India & Anr., SLP (Crl.) No. 9236/2021, decided by Hon'ble Supreme Court on 29.03.2022.
5. On the other hand, the applications have been vehemently opposed by learned counsel for NCB. It is submitted that the alleged discrepancy as pointed in the remand application vis-à-vis case of accused, can be looked into at the stage of trial after the concerned witnesses are cross examined. However, it is submitted that the case of the prosecution is consistent that the recovery was effected while all the three occupants were present in the car.
Reliance is also placed upon the judgment passed in Union of India vs. Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 5 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49 Prateek Shukla, Crl. Appeal no. 22/2021 decided by Hon'ble Supreme Court on 08.03.2021 and orders passed by the Coordinate Bench in Kelvin George Katindasa vs. NCB, Bail Appln. 3149/2020, decided on 09.11.2021.
6. I have given considered thought to the contentions raised.
There is no dispute that the alleged recovered substance is neither a narcotic drug nor a psychotropic substance under the NDPS Act, but is a controlled substance. It is also admitted by learned counsel for the respondent/NCB that there is no commercial quantity specified under the Act with reference to "controlled substance".
In view of above, prima facie, the bar under Section 37 does not appear to be attracted in case of a controlled substance within the meaning of Section 2(viid) of NDPS Act, 1985.
However, the question which remains for consideration is whether the petitioners be extended the benefit of bail considering the recovery made in the instant case.
It may be noticed that contrary stands appear to have been taken by the both set of accused i.e. Dharmender Singh and Dujender Singh on one side and applicant Pankaj Kumar Mishra on the other side and each alleging the possession of contraband to the opposite party. However, at the same time, it cannot be ignored that in the remand application preferred on behalf of the NCB, it was specifically averred that two persons namely Dharmender Singh and Dujender Singh came there in the said car and petitioner Pankaj Kumar Mishra standing there, sat in the said car which was later on intercepted. There is no reference to any bag in possession of Pankaj Kumar Mishra at the spot in the aforesaid remand application. The petitioner Pankaj Kumar Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 6 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49 Mishra has been impleaded on the basis of his apprehension after he sat in the car, wherein the alleged recovery was made.
I am of the considered opinion that the aforesaid discrepancy with reference to the case against petitioner Pankaj Kumar Mishra is material, which can only be further clarified by the NCB during the course of trial on examination of the concerned witnesses. However, at this stage, the aforesaid circumstance is sufficient to extend the benefit of bail to Pankaj Kumar Mishra as it needs to be proved that Pankaj Kumar Mishra was either aware of the contents of the bag or had reached to collect the same.
7. BAIL APPLN. 4108/2021 is accordingly allowed and Pankaj Kumar Mishra is admitted to bail subject to furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the learned trial court and subject to following conditions:-
(i). The petitioner shall provide his mobile number to the Investigating Officer (IO) concerned/SHO concerned at the time of release, which shall be kept in working conditions at all times. The petitioner shall not switch-off, or change the same without prior intimation to the IO concerned, during the period of bail;
(ii). The petitioner shall not leave the NCT of Delhi without the prior permission of the concerned trial court;
(iii). The petitioner shall not indulge in any criminal activity or any illegal activities during the bail period.
(iv). The petitioner shall not tamper with the evidence of the case.
So far as other two accused (Dharmender Singh and Dujender Singh) Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 7 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49 are concerned, considering the nature of allegations, quantity of controlled substance recovered from the car and the fact that the car stood registered in the name of father of both the petitioners, no grounds for bail are made out at this stage.
BAIL APPLN. 2087/2021 and 2940/2021 of Dharmender Singh and Dujender Singh, are accordingly dismissed.
Applications are accordingly disposed of.
A copy of this order be forwarded to the Superintendent Jail and the learned trial court for information and compliance.
ANOOP KUMAR MENDIRATTA, J.
NOVEMBER 1, 2022/akc Signature Not Verified Digitally Signed BAIL APPLN. 2087/2021, 2940/2021 & 4108/2021 Page 8 of 8 By:DINESH CHANDRA Signing Date:03.11.2022 18:16:49