Delhi High Court - Orders
Nagesh Sharma vs State on 24 November, 2020
Author: Anu Malhotra
Bench: Anu Malhotra
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. No.1099/2020
NAGESH SHARMA ..... Petitioner
Through: Mr. Vivek Aggarwal, Advocate
versus
STATE ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP for State
with SI Rakesh Kumar
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 24.11.2020 (Through Video Conferencing) Crl.M.A. No. 14925/2020 Exemption allowed, subject to just exceptions.
Crl.M.(Bail) No. 8222/2020The matter is taken up qua Crl.M.B. No. 8222/2020 filed on behalf of the applicant seeking the grant of interim bail for a period of 30 days in relation to FIR 218/18 Police Station Crime Branch New Delhi submitting to the effect that FIR 218/18 Police Station Crime Branch New Delhi under Sections 22 read with Section 29 of the NDPS Act, 1985 and Sections 63/65 of the Copy Rights Act has been foisted falsely on the applicant and that vide detailed arguments in Bail Appln. No. 1099/2020, the matter was reserved for orders on 6.7.2020 and since then the order on the said Bail Appln. No. 1099/2020 is reserved and that due to circumstances and necessities Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 1 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
the applicant is constrained to seek grant of interim bail for a period of 30 days to perform his responsibilities in as much as :
he has his wife and three minor daughters aged 14 years, 12 years and 3 ½ years;
that the wife of the applicant does not keep well and is suffering from health related problems and is unable to take proper care of herself and the minor daughters and is also unable to undertake any job for the livelihood due to her deteriorating health condition; that two of the minor daughters of the applicant Divyanshi Sharma and Adhya Sharma, who are studying in 9th and 7th standard at the ASSISI Convent School at Noida;
that the fees of the said two children is pending for the last few months and the total demand of the school fees of both the children amounts to Rs.1,00,000/- approximately and; that the applicant also gets to need his youngest child Ridhima Sharma 3 ½ years admitted to ASPAM Scottish School at Noida and the total fees for the admission of the child is Rs.65,500/- which has to be deposited ;
that the applicant is the owner of one BHK flat bearing No. 451, Plot No.4 Deep Ganga Resident and Commercial Complex, Sector 5A IIE, SIDCUL in Haridwar, Uttarakhand, which the applicant purchased in the year 2013;
that the applicant was required to deposit Rs.20,000/- as maintenance charges for the said society which is also pending for the last three years;
that the applicant had taken a loan of Rs. 14,00,000/- from the LIC Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 2 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
Housing Finance Ltd. to purchase the said flat which is to be repaid in 20 years;
that the monthly instalments are to be paid to the LIC Housing Finance Ltd. to the tune of Rs.14,000/- and; that the applicant having been incarcerated for more than two years there is no income in the family of the applicant and the wife of the applicant is unable to repay the EMIs' and that the closing of the account is for a sum of Rs.13,00,000/- and; that it is incumbent upon the applicant to discharge his said liabilities and thus the applicant submits that he has been enlarged on interim bail on two occasions earlier with no adverse reports against him for his conduct at the jail and that the applicant has clean antecedents and be thus granted bail.
Qua this application seeking grant of interim bail notice of the said application is issued to the State. The status report and response be submitted by the State for the date 27.11.2020.
It is however, considered appropriate and essential that Bail Appln. No. 1099/2020 which is the main bail application filed by the applicant seeking grant of regular bail in relation to FIR 218/18 Police Station Crime Branch New Delhi under Sections 22 read with Section 29 of the NDPS Act, 1985 and Sections 63/65 of the Copy Right Act, is also taken up now and it is being so taken up now.
The brief facts alleged against the petitioner herein as brought forth through the status reports that have been filed by the State on the record dated 9.6.2020, 2.7.2020 and the brief submissions submitted by the State dated 3.7.2020 allege to the effect that:
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 3 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
There was a secret information that was received at Police Station Crime Branch on 28.08.2018 informing that accused No. 1 Sunil Sharma along with his associates accused No. 2 Rajesh and the present applicant accused No. 3 Nagesh Sharma, the present petitioner, was involved in the illegal supply of tramadol without any documents and that the transaction would take place on that day at around 7-8 pm at Minto Road Bus Stop, Bhavbhooti Marg, New Delhi Railway Station whereby the co-accused Rajesh and the petitioner herein would allegedly be delivering the tramadol to Sunil Sharma, the co-accused. Information was also given about the registration number of the cars and the police recorded the said information as per Section 42 of the NDPS Act, 1985, and went to the spot for the purpose of raiding and busting the transaction and waited at the spot and at around 7:45 p.m. the co-accused Sunil Sharma allegedly came to the spot in his car and started waiting for someone and thereafter after 10 minutes the co-accused Rajesh Sharma and the present applicant Nagesh came there in the car of the co-accused Rajesh Sharma and were identified by the informer and the co- accused Rajesh handed over a white parcel to Nagesh, i.e., the petitioner herein and the petitioner herein in turn put that parcel in the car of Sunil Sharma. Rajesh is then alleged to have handed over the second parcel to Nagesh, i.e., the petitioner herein, who was going to put that in the car of Sunil Sharma, the co-accused, but was then caught by the police;
The allegations levelled against the applicant inter alia state to the effect that the requisite notice under Section 50 of the NDPS Act, Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 4 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
1985, was issued to the accused persons who were informed of their rights under Section 50 of the NDPS Act, 1985, and on their deposing faith in police they were searched. On search, the police found two parcels in the car of Sunil Sharma, one big and one small and two parcels in the car of Rajesh and one parcel in the hands of the petitioner herein and on search the police found that all the parcels contained boxes of medicine namely "SPASMO PROXYVON PLUS", there being 324 boxes out of which 156 boxes were recovered from the car of Sunil Sharma (100 from the large parcel and 56 from the small parcel) and 56 were from the parcel held by the petitioner herein 112 boxes were recovered from the car of Rajesh Sharma 56 having been found in each of the parcel; It was further alleged by the prosecution that each hard gelatin capsule contained Tramadol Hydrochloride I.P.50mg and every box of medicine contained 18 strips with 8 capsules each and therefore, the total quantity of tramadol capsules seized from the accused persons was 46656 without any document in relation to their alleged act;
The FIR is stated to have been registered on 29.8.2018 at around 3:10 a.m. and the all the persons arrayed as accused were arrested at the spot;
The allegations levelled against the applicant and the co-accused further relate to the aspect that the co-accused Sunil Sharma was allegedly found to be the mastermind of the illegal drug racket and it was discovered that he was involved in the illegal trade of many other contrabands and that he along with other co-accused persons used to Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 5 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
manufacture Spasmo Proxyvon Plus capsules in their own factory and was also involved in the supply of Buprenorphine injections in order to get high price for his drugs, used to procure stickers and labels of popular companies like LupiGesic and supplied these labels along with the illegal consignments of buprenorphine injections to his contact so that they could affix these stickers and labels on buprenorphine ampoules procured by them. It is alleged by the State that upon disclosure of accused Sunil Sharma the police had recovered 1.68 lakh buprenorphine ampoules.
Inter alia, the allegations are made to the effect that the factory premises of the accused persons was raided and the machinery used by the accused persons for manufacturing the drugs containing tramadol, Pen-10 and Stemetil MD, empty cardboard boxes, printed foil boxes and rolls of different pharma companies, Wockhardt Ltd. whose empty cardboard boxes were recovered from the factory and a complaint under Section 64(1) of the Copyright Act was thus filed.
The FSL reports are stated to have been received in the matter and after completion of investigation, the charge sheet under Section 22 read with Section 29 of the NDPS Act, 1985, and Section 63/65 of the Copyright Act, 1957 against the six accused persons was filed.
Inter alia it has been submitted on behalf of the State that tramadol was brought under the NDPS Act vide Notification S.O.1761(E) dated 26.04.2018 issued by the Department of Revenue, Ministry of Finance, and that the small quantity and the commercial quantity of the same was defined by the said notification whereby it was brought forth that the small quantity for the said substance is at Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 6 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
serial No.238 ZH in column No.5 of the table of the NDPS Act, 1985 which was 5 gms whereas the commercial quantity was put in column No.6 which has been 250 gms furthermore, vide notification noS.O.3448 (E) dated 13.7.2018, the said notification was dated 26.4.2018 was amended and an exemption period was granted to the licensed manufacturers, importers and exporters of tramadol for 120 days. The said period started from 26.4.2018 and lapsed on 24.8.2018 when the raid in the instant case is alleged to have been conducted om 28.8.2018. It has thus been submitted on behalf of the State that the applicant and the other co-accused persons have committed an offence by indulging in the supply of tramadol after the expiry of the cooling of period as prescribed by the notification dated 13.7.2018 which stated to the effect:
"The licensed manufacturers, importers and exporters of Tramadol shall be covered under the provisions of this notification after the expiry of a period of 120 days from the date of its publication in the Official Gazette.".
Inter alia, it has been stated by the State that the co-accused Rajesh Sharma was carrying 32,256 capsules each having 50 mg of tramadol and thus 1612.8 gms of tramadol was seized from him on 28.8.2018 from the crime spot, i.e.,. Minto Road Bus Stop, Bhavbhooti Marg, New Delhi Railway Station.
It is further alleged by the prosecution against the applicant that he was involved in the supply of Spasmo Proxyvon Plus capsules containing commercial quantity of tramadol on 28.8.2018;
That the petitioner had arranged the entire machinery which Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 7 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
was used in manufacturing of recovered capsules that he himself was operating the blister/loader machine and had also arranged the labour for doing manual labour in their factory set-up; That the petitioner along with the co-accused Sunil Sharma used to supply Spasmo Proxyvon Plus Capsules, stemtil MD, Pen-40, Pseudoephedrine tablets to their contacts after preparing the same in their factory and;
That the applicant had also arranged 10kg of tramadol from one Narayan Chaudhary for manufacturing Spasmo Proxyvon Plus Capsules.
The State has further alleged that the petitioner was caught by the police whilst he was along with the co accused Rajesh Sharma supplying commercial quantity of tramadol to the co-accused Sunil Sharma;
That the FSL report in the matter of the sample seized from the spot clearly showed that the seized drug contained tramadol.
Inter alia, the State has submitted that the petitioner along with co-accused persons led the police to their factory situated at Sihani, Ghaziabad, where the police had seized machinery which was being used for manufacturing drugs, empty boxes of Spasmo Proxyvon Plus bearing batch Number JT10155 with the same batch which was printed on the boxes recovered from the petitioner and other co-accused persons.
Inter alia, it has been submitted by the State that the printed foil boxes of Stemetil MD of Abbot Health Care Private Limited were also recovered from the said factory and thus at the instance of the Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 8 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
petitioner the police had recovered blister machine, parts of blister machine, seven PantaparazolPlus Domeridone Crannalsdrums used in preparing Pen-40 tablets, from the factory rented out to the co- accused Rajesh Sharma.
It has further been submitted on behalf of the State that the CDR of the petitioner has also brought forth that he was in regular contact with the co-accused Rajesh Sharma in as much as there were around 351 Calls between them from 28.3.2018 to 28.8.2018. The State has further stated to the effect that the allegations against the applicant are of very serious nature as commercial quantity of contraband has been recovered from him to which the embargo of Section 37 NDPS Act, 1985, applies and that there exists no reasonable grounds for believing that the petitioner is not guilty of the commission of any offence.
The State has further submitted to the effect whilst refuting the contentions made on behalf of the petitioner to the effect that sufficient evidence is on the record against the petitioner who was caught red handed for supplying the commercial quantity of tramadol to the co-accused Sunil Sharma and submitting further to the effect that as to whether or not there had been a requisite compliance of Section 37 of the NDPS Act, 1985, is a matter of trial and cannot be considered at this stage. The State has thus vehemently opposed the prayer made by the applicant seeking grant of bail in the case.
On the other hand, the applicant submits that all the allegations levelled against the applicant are false and that in fact the State has chosen to get the FIR registered on the date 28.8.2018 after the Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 9 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
notification was issued dated 13.7.2018 amending the notification dated 26.4.2018 as a consequence of which tramadol was brought into the ambit of the NDPS Act vide serial No. 238ZH with effect from the date 24.8.2018 and the raid in the instant case is alleged to have been conducted on 28.8.2018, it has thus been submitted on behalf of the applicant that this date is an indication of the falsity of the prosecution version. The applicant further submits that no raid whatsoever has been conducted at his place and that the prayer that the applicant had made for preserving and supply him copy of the CFSL report and CDRs, had been allowed by the learned Trial Court vide order dated 30.7.2019 but the preserved data was not supplied to the petitioner/applicant by the State which brought forth the falsity of the prosecution version.
It has further been submitted on behalf of the applicant that the investigation qua the applicant has already been completed and that the applicant is not required to be further incarcerated for any purpose nor for any custodial interrogation and continued detention would serve no purpose except for posing unnecessary hardships for the petitioner and his family members.
Reliance was sought to be placed on behalf of the on the verdict of the Hon'ble Supreme Court in Dataram Singh v. State of U.P.; (2018) 3 SCC 22, to contend to the effect that the presumption of innocence has essentially to be drawn in favour of the applicant as the applicant has never absconded and has joined the investigation and that the applicant undertakes to abide by all the terms and conditions, if any, imposed at the time of grant of bail. Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 10 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
On a consideration of the rival submissions that have been made qua the Bail Appln. No. 1099/2020 filed by the applicant, the Court is of the considered view that the alleged investigation conducted in the instant case alleges qua the red handed apprehension of the applicant at the spot whilst allegedly handing over the contraband to the co-accused.
Further more, the allegations that are made by the prosecution allege to the effect that the applicant had led the police personnel to the factory situated at Sihani, Ghaziabad, that the police had seized machinery being used for manufacturing drugs, empty boxes of Spasmo Proxyvon Plus bearing batch No. JT101155 which was the same batch number printed on the boxes recovered from the petitioner and the co-accused persons on the crime spot with printed foil boxes of Abbot Health Care Pvt. Ltd. also having being recovered from the said factory and which thereby at this stage prima facie without any observations on the merits or demerits of the trial that would take place alleges qua the spurious and fake medicines being manufactured by the applicant in connivance with other co-accused persons and packing them in fake printed empty boxes with printed foil boxes of medicine which would apparently then be supplied into the market and sold to innocent persons causing grave danger to their lives. As rightly contended on behalf of the State the aspect of the compliance or otherwise under Section 50 of the NDPS Act, 1985, is a matter of trial. It has been submitted on behalf of the State that the CDRs of the petitioner/applicant herein that he has been in regular contact with the co-accused Rajesh with 351 calls between him and Rajesh Sharma Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 11 of 12 digitally signed by PS to HMJ ANU MALHOTRA.
from 28.3.2018 to 28.8.2018, coupled with the factum that the alleged commercial quantity of tramadol was recovered on 28.8.2018 inter alia from the vehicle driven by Rajesh Sharma in which the applicant was also present, in the facts and circumstances of the instant case, it is apparent that a commercial quantity of tramadol having been recovered allegedly from the petitioner and the co-accused persons with the applicant having been in the vehicle which the co-accused person Rajesh the original owner of the same was found with alleged contraband of tramadol, there is no ground whatsoever for grant of bail to the applicant qua Bail Appln. No. 1099/2020 which is thus dismissed.
The matter be however renotified qua the Crl.M.Bail No. 8222/2020 on 27.11.2020.
.
ANU MALHOTRA, J NOVEMBER 24, 2020/SV Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:26.11.2020 15:09:07 This file is Bail Appln. No. 1099/2020 12 of 12 digitally signed by PS to HMJ ANU MALHOTRA.