Delhi High Court - Orders
Gautam@Gotu vs State(Nct Of Delhi) on 20 October, 2023
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2405/2023
GAUTAM@GOTU ..... Petitioner
Through: Mr. Vikas Kumar Gautam, Advocate
versus
STATE(NCT OF DELHI) ..... Respondent
Through: Mr. Shaoib Haider, APP with SI Amit
Kumar, PS Govindpuri
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER
% 20.10.2023 [The proceeding has been conducted through Hybrid mode]
1. This is an application under Section 439 of the Cr.P.C., 1973 r/w Section 37 of the NDPS Act, 1985 seeking grant of regular bail in FIR No. 0703/2021 dated 12.12.2021 under Section 21/61/85 NDPS Act, 1985 registered at Police Station Govindpuri South East, Delhi.
2. Story of the prosecution as narrated in the status report is as under:-
"1. It is submitted that on 11/12/2021 at about 9 PM, a secret informer came to SI Gaurav Chaudhary, Anti Narcotics Cell and gave information to SI Gaurav Chaudhary, old police post Garhi, Amar colony, new Delhi regarding 2 persons namely Gautam and Vinay who would come to DDA park, behind Madina Maszid, near Indian oil petrol pump at Govindpuri to sell heroin to potential customers. If raid is conducted those persons can be apprehended with Heroin.
2. Accordingly, the information was shared with Sr. Officers (Inspector Aishvir Singh /C Anti-Narcotic Squad/SE Delhi and BAIL APPLN. 2405/2023 1 This is a digitally signed order.
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 21/10/2023 at 00:50:12 ACP/Operations, Ms. Surender Jeet Kaur) telephonically and after orders, a raiding team consisting of HC Salimuddin no. 1445/SE and Ct Himanshu no. 3171/SE was constituted to nab the persons. Thereafter, DD No. 07 at Anti-Narcotics squad was lodged regarding secret information and Vide DD No.08A, the team departed in a private Santro car in plain clothes with secret information and reached Govindpuri Metro Station, where 2/3 passers-by were informed regarding the secret information and were requested to join the police team, however, all of them narrated their genuine problems & without disclosing their identity, went away.
3. Thereafter, SI Gaurav Chaudhary along with team and secret informer reached near DDA park, behind madina Maszid near Indian oil petrol pump, Govind puri New Delhi where also 3-4 passers-by were also requested to join the raiding team but they all refused & without disclosing their identity, went away.
4. At around 11.00 PM, two persons came on foot and entered in the park, on the pointing out of secret informer, the said persons Vinay and Gautam were stopped with the help of police staff/raiding team. They tried to ran away and subsequently were apprehended by the raiding team. The identity of the persons was established as Gautam @ Gotu S/o Santosh R/o H.no B-333, Transit Camp Govind puri New Delhi, Age 19 years and Vinay S/o Subhash R/o A-1309, Gali no 13, Govind puri Delhi Age 20 years were apprehended and Legal formalities were done i.e. notice U/S 50 NDPS Act was served to them. In this regard they were informed about their rights and if they want the presence of Magistrate or Gazetted Officer for their personal search.
5. Therefore, ACP/Operation Ms Surender Jeet kaur was called at the spot and both the persons Gautam @ Gotu and Vinay S/o Subhash refused for search in presence of ACP Ms Surender Jeet Kaur. Thereafter ACP went away after giving necessay instructios. After that the search of both the persons BAIL APPLN. 2405/2023 2 This is a digitally signed order.
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 21/10/2023 at 00:50:12 were carried out and one polythene each was recovered from the possession of Gautam @ Gotu and Vinay containing cream colour powder and on checking of polythene, smell of Heroine was found. The substance was tested with field test kit and it was found to be heroine. When the said polythene was weighed by the IO kit, it was found around 25g of Heroine in both the polythene.
6. The recovered Heroine pouches were kept in two separate plastic containers and Pulandas were prepared after wrapping it with doctor tape and marked as A & B respectively and the said exhibits were sealed by SI Gaurav Chaudhary with the seal of GC & later on the said exhibits were counter sealed by SHO/PS Govind puri, with the seal of VK respectively. The recovered Heroine was deposited at PS Malkhana through seizure memo by SHO/PS Govind puri, New Delhi. Accordingly, the aforesaid case was registered & further investigation was taken up by SI Shailendra Kumar.
7. To unearth the whole racket, police custody remand of both the accused was obtained and during police custody remand, the area of Barapulla flyover near Hazarat Nizamuddin was visited, but the said supplier could not be traced. After completion of investigation the charge sheet was prepared and sent to court on 08.02.2022.
8. The exhibits (Sample) of the case were sent to FSL Rohini for chemical examination. The FSL result of the same has been received vide SFSL No. DLH/1111/CHEM/348/22 dated 03.02.2023 on which the expert has given following opinion- On Chemical TLC & GC-MS examination: Exhibits 'X' and Y' were found to contain 'Acetaminophen', 'Caffeine', 'Monoacetylmorphine', 'Aacetylcodeine' & 'Trimethoprim'.
3. Learned counsel appearing for the applicant submits that the applicant is a young man of 21 years of age and has been incarcerated in judicial custody from 12.12.2021. He submits that the applicant has BAIL APPLN. 2405/2023 3 This is a digitally signed order.
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 21/10/2023 at 00:50:12 been in judicial custody for around 1 year 8 months approximately.
4. Learned counsel submits that the allegation of recovery against the applicant is to the extent of the 25 gms of contraband i.e. heroin which comes within the intermediate quantity. He further submits that chargesheet has been filed, the charges have been framed and the prosecution evidence is being recorded by the learned Trial Court. Out of around 17 witnesses, only 2 witnesses by now have been examined so far.
5. Learned counsel appearing for the applicant submits that there is no previous involvement of the applicant in respect of the offences under the NDPS Act and submits that the rigors of Section 37 NDPS will not be applicable.
6. He further submits that the trial is likely to take time and applicant can be released on bail in the meantime. He also submits that there are no vulnerable or public witnesses in the present case and all the witnesses are police officials or official witnesses and as such, the apprehension of tampering of the evidence / threatening of the witnesses does not arise. On the aforesaid basis, learned counsel seeks release of the applicant on bail.
7. Per contra, Mr. Haider, learned APP for the State invites attention of this Court to the status report and submits that 25 gms of the contraband substance i.e. heroin was recovered from the applicant at the spot. According to learned APP, the recovery itself would invoke the provisions of Section 37 NDPS Act and the applicant is not entitled to bail.
8. That apart, while referring to SCRB, learned APP submits that BAIL APPLN. 2405/2023 4 This is a digitally signed order.
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 21/10/2023 at 00:50:12 the applicant is involved in some more criminal cases. However, the same are not arising out of any offence under the NDPS Act. Learned APP affirms that 2 witnesses out of 17 witnesses have been examined till date.
9. On the aforesaid basis, learned APP submits that having regard to the recovery as also rigors of Section 37 NDPS Act, the applicant ought not to be granted bail.
10. This Court has heard the arguments of learned counsel appearing for the applicant as also the learned APP for the State as also perused the status report, nominal roll and SCRB on record.
11. As per the nominal roll dated 04.09.2023, the applicant has already undergone 1 year, 8 months and 19 days as on date.
12. As per the prosecution case, the recovery which has been effected from the applicant is to the extent of 25 gms of heroin which, is admittedly an intermediate quantity, and attracts maximum punishment of imprisonment for 10 years. The contraband that was seized was sent to the FSL for analysis.
13. The scientific analysis conducted by FSL has shown the following results:-
"The exhibits (Sample) of the case were sent to FSL Rohini for chemical examination. The FSL result of the same has been received vide SFSL No. DLH/1111/CHEM/348/22 dated 03.02.2023 on which the expert has given following opinion- On Chemical TLC & GC-MS examination: Exhibits 'X' and 'Y' were found to contain 'Acetaminophen', 'Caffeine', 'Monoacetylmorphine', 'Aacetylcodeine' & 'Trimethoprim'."
14. There is no doubt that there are many cases pending against the BAIL APPLN. 2405/2023 5 This is a digitally signed order.
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 21/10/2023 at 00:50:12 applicant as per the SCRB, though the nominal roll shows only one case in which the applicant is already on bail. None of the other cases pertain to any offence under NDPS Act and even the SCRB does not show the status of those cases as on date.
15. This Court does not have necessary records to ascertain as to whether the applicant has been convicted or acquitted in those cases.
16. It is relevant to note that the applicant is only 21 years of age and ordinarily should not be in the company of hardened criminals.
17. That apart, though recovery is made and the rigors of Section 37 NDPS Act would be applicable on all fours, however, keeping in view the ratio of Supreme Court in Rabi Prakash vs. The State of Odisha, SLP (Crl.) No(s).4169/2023 rendered on 13.07.2023, Mohd Muslim @ Hussain vs. State (NCT of Delhi), Crl.A. No. 943/2023, this Court is of the considered opinion that the applicant can be released on regular bail.
18. Accordingly, it is directed that the applicant be released on bail on his furnishing personal bond in the sum of Rs.30,000/- with one surety of the like amount to the satisfaction of the Trial Court, subject to the conditions as follows:-
a) He shall surrender his passport, if any, to the Court concerned and shall under no circumstances leave Delhi without prior permission of the Court concerned;
b) He shall cooperate in the trial and shall appear before the Court as and when required;
c) He shall provide his mobile number(s) to the Investigating Officer and keep it operational at all times;BAIL APPLN. 2405/2023 6
This is a digitally signed order.
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 21/10/2023 at 00:50:12
d) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;
e) He shall not indulge in criminal activity of any nature whatsoever;
f) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/ Court concerned by way of an affidavit.
19. Any infraction of the aforesaid conditions shall make the applicant liable for the revocation of the bail.
20. Nothing in this Order shall be construed as an expression of opinion on the merits of the pending matter.
21. A copy of this order be sent to the Jail Superintendent forthwith.
22. With the aforesaid conditions, the bail application stands disposed of.
TUSHAR RAO GEDELA, J OCTOBER 20, 2023/ms BAIL APPLN. 2405/2023 7 This is a digitally signed order.
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 21/10/2023 at 00:50:12