Delhi High Court - Orders
Mithun Chatterjee vs The State Of Nct Of Delhi on 28 February, 2022
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 121/2022
MITHUN CHATTERJEE ..... Petitioner
Through Mr. Krishan Singh Chauhan,
Advocate
versus
THE STATE OF NCT OF DELHI ..... Respondent
Through Ms. Meenakshi Chauhan, APP for
State with Insp. Jai Prakash Nagar,
P.S. GK-I.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 28.02.2022
1. The present bail application has been filed under Section 439 Cr.P.C. on behalf of the applicant seeking regular bail in FIR No. 328/2021 registered under Section 302 IPC at P.S. Greater Kailash, Delhi.
2. Learned counsel for the applicant submits that the applicant is in custody since 23.12.2021 and the charge sheet having been filed, he is no longer required for any investigation. It is submitted that in the present case, the allegations levelled against the present applicant under Sections 27A/29 of the NDPS Act are not made out inasmuch as neither there has been any recovery nor there is any proof that the applicant has indulged himself in financing illicit trafficking and harbouring offenders. He further submits that in the present case, initially the FIR was registered under Section 302 IPC on the discovery of death of one Rahul Thakur, whereafter on analysis of his mobile details, disclosure statement of the present applicant came to be recorded resulting in addition of Sections 27A/29 of the NDPS Act and Signature Not Verified Digitally Signed BAIL APPLN. 121/2022 Page 1 of 6 By:VIRENDRA KUMAR Signing Date:02.03.2022 10:44:31 Section 292 IPC.
3. Learned APP for the State, on the other hand, has vehemently opposed the bail application. During the course of proceedings, the Status Report has been handed over in the Court today, which is taken on record. She submits that post receipt of information of body of the deceased, investigation was carried out. She further submits that during the analysis of the mobile of the deceased, it has surfaced that the deceased had travelled after booking a cab from Uber and in this regard the statement of one Ranjit Singh, taxi driver has also been recorded. As per the statement, the taxi driver had stated that he had taken the deceased on the fateful night from S-Block, Greater Kailash to Khirki Extension. In between, the deceased had stopped him nearby an ATM and withdrawn money. He further stated that the deceased after getting down from the taxi came with a white transparent polythene in his hand and was looking happy.
Learned APP for the State submits that during investigation, the chat messages between the applicant and one Jayant were also analysed. It is submitted that as per the chat messages, the applicant had offered sale of weed to the said witness. She submits that statement of one Rajat Batra has also been recorded, who has also stated that the applicant at one point of time had offered to sell weed to him. She submits that the disclosure statement of the applicant and the statements of the taxi driver as well as the aforesaid two witnesses would establish the link between the applicant and the offence charged.
Learned APP for the State has relied upon the post-mortem report and submits that the Viscera Report is still awaited. On a specific query, learned APP for the State, on instructions from the Investigating Officer, submits Signature Not Verified Digitally Signed BAIL APPLN. 121/2022 Page 2 of 6 By:VIRENDRA KUMAR Signing Date:02.03.2022 10:44:31 that the applicant is not found involved in any other case. Lastly, she submits that rigors of Section 37 of the NDPS are applicable in the present case.
4. I have heard learned counsel for the applicant as well as learned APP for the State and have also perused the entire material placed on record.
5. A perusal of the material placed on record would show that initially on receipt of the PCR call from the landlord, namely, Jagjit Singh Kharbanda, the body of one Rahul Thakur was discovered, who on taken to the hospital was declared brought dead. Thereafter, the present FIR under Section 302 IPC came to be registered. During the investigation, CCTV footage of the area was checked, which revealed that the deceased had gone out of the house at about 12:30 a.m. (mid night) and returned back around 1:00 a.m. The CCTV footage further revealed that at about 1.23 a.m., one person namely Vijay Kumar had also come to the house of the deceased and had left at about 3:00 a.m. From the material available on the record, no suspicion was found with respect to Section 302 IPC and the charge sheet came to be filed under Sections 27A/29 of the NDPS Act and 292 IPC. Learned APP for the State has relied upon the disclosure statement of the applicant as well as the statement of taxi driver and two witnesses.
6. A perusal of the statement of the taxi driver recorded on 23.12.2021 would show that he had taken the deceased on the fateful night to Khirki Extension and brought him back. He does not state as to the deceased meeting the applicant or having seen any narcotics substance in his hand. In his statement, it has only been stated that the applicant was seen carrying a transparent polythene containing white powder.
7. A perusal of the statement of Jayant recorded on 31.01.2022 would Signature Not Verified Digitally Signed BAIL APPLN. 121/2022 Page 3 of 6 By:VIRENDRA KUMAR Signing Date:02.03.2022 10:44:31 show that he came in touch with the applicant through Instagram and the applicant has offered to sell weed however, he categorically stated that he never bought the same from the applicant. The WhatsApp chat message dated 18.09.2021 stated to have been exchanged between them would also show that no transaction has taken place. The statement of Rajat Batra is also cumulative to the effect that though the applicant has offered to sell the weed but no transaction had taken place. It is noteworthy that while WhatsApp chat between the applicant and Jayant is of 18.09.2021, the incident in the present case relates to 20.12.2021.
8. During the course of submissions, learned counsel for the applicant has placed reliance on the decision of the Supreme Court in Bharat Chaudhary v. Union of India reported as 2021 SCC OnLine SC 1235, wherein it has been held as follows:
"10. After carefully examining the arguments advanced by learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6th December, 2019, two test reports dated 17th December, 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that "quantitative analysis of the samples could not be carried out for want of facilities". In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic subtances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by the DRI admittedly contain herbs/medicines meant to enhance Signature Not Verified Digitally Signed BAIL APPLN. 121/2022 Page 4 of 6 By:VIRENDRA KUMAR Signing Date:02.03.2022 10:44:31 male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16th March, 2020. Reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited.
11. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15th July, 2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra). The impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2nd November, 2020 passed by the learned Special Judge, EC & NDPS Cases, is restored. As for Raja Chandrasekharan [A-1], since the charge sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial Court."
9. In view of the submissions made and the material placed on record, this Court is of the prima facie view that neither any recovery has been effected from the applicant nor there is any proof to show that the applicant has sold the substance to the deceased or the witnesses, namely, Jayant and Rajat Batra. In view of the aforesaid narration, this Court is satisfied that there are reasonable grounds to believe that the applicant is not guilty of the offence and is also not likely to commit any offence after grant of bail.
10. Keeping in view the aforesaid facts and circumstances of the case, it is directed that the applicant be released on regular bail subject to his Signature Not Verified Digitally Signed BAIL APPLN. 121/2022 Page 5 of 6 By:VIRENDRA KUMAR Signing Date:02.03.2022 10:44:31 furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/ concerned Court/Duty M.M. and also subject to the following further conditions :-
i) The applicant shall remain available on mobile number i.e., 8800882422 (which belongs to his pairokar/Mr. Raman Singhal), which shall be kept operational at all times during the pendency of the trial.
ii) The applicant shall not directly/indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence.
iii) The applicant shall regularly appear before the concerned Court during the pendency of the trial.
iv) In case of change of residential address or contact details, the applicant shall promptly inform the same to the concerned Investigating Officer as well as to the concerned Court.
11. The bail application is disposed of in the above terms. 12 Copy of the order be communicated electronically forthwith to the concerned Jail Superintendent for information.
13. Copy of the order be also uploaded on the website forthwith.
14. Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case.
MANOJ KUMAR OHRI, J FEBRUARY 28, 2022/v Click here to check corrigendum, if any Signature Not Verified Digitally Signed BAIL APPLN. 121/2022 Page 6 of 6 By:VIRENDRA KUMAR Signing Date:02.03.2022 10:44:31