Delhi High Court - Orders
Devender Sen vs Narcotics Control Bureau on 4 February, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 355/2022
DEVENDER SEN ..... Petitioner
Through: Mr. Siddharth Yadav, Advocate
versus
NARCOTICS CONTROL BUREAU ..... Respondent
Through: Mr. Rajesh Manchanda, SPP
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 04.02.2022
(THROUGH VIDEO CONFERENCING)
1. The instant application has been filed under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter "Cr.P.C.") seeking interim bail for a period of 30 days.
2. The brief background of the matter suggests that on 7th December, 2017, an Intelligence Officer, Sh. Bankey Ram, of the Narcotics Control Bureau (hereinafter "NCB") received secret information that one shipment having a parcel was lying pending dispatch at the UBX Courier Company, Mahipal Pur, New Delhi, which was suspected to contain drugs/psychotropic substance and huge quantity of narcotics drugs may be recovered from there. The information was placed before the Superintendent, NCB, Delhi Zonal Unit, Ms. Tulika Morang, who directed the Intelligence Officer to constitute a team and take action as per law.
3. The concerned NCB team alongwith independent witnesses upon Signature Not Verified Signed By:GAURAV SHARMA Signing Date:05.02.2022 14:54:08 reaching the site found a cardboard carton which was containing 70 coloured religious books. All the books were similar and when checked were found to be bearing abnormal weight. The board of the books was cut open and it was found to contain silver colour foil paper which further contained transparent polythene containing dark brown colour substance. The substance was sent for testing and was tested positive for Charas.
4. Preliminary inquiry at the courier company revealed that the consignment was booked from Overnite Express, Courier Shop No. 6, Block-32, Sanjay Palace, Agra, Uttar Pradesh. Upon reaching the site in Agra, Intelligence Officer Sh. Bankey Ram and his team met with one Pawan Pandey, Area Manager of the courier company and enquired him about the parcel. Sh. Pawan Pandey was summoned for recording of his statement under Section 67 of the Narcotics Drugs and Psychotropic Substances Act, 1985, (hereinafter "NDPS Act"). In his statement, Sh. Pawan Pandey stated that the concerned parcel was booked by one person who gave ID in the name of Jenish Lama. He further stated that the person who came with the ID was found to be Devender Sen, applicant herein, who said that the ID belonged to his owner. The address given in the ID was not located, however, the NCB team was able to track the applicant and made the required inquiry. The applicant, upon inquiry, stated that the parcel concerned was delivered to him by his friend Ram Avtar which was sent to him by one Vikrant Gurung.
5. In pursuance of the summons under Section 67 of the NDPS Act, the applicant appeared before the Intelligence Officer and tendered his voluntary statement wherein he admitted his involvement in the commission of the crime and booking of the parcel in question. He also revealed that the said Signature Not Verified Signed By:GAURAV SHARMA Signing Date:05.02.2022 14:54:08 parcel belonged to one Vikrant Gurung and his friend Ram Avtar was also involved in the commission of the crime.
6. On 10th December, 2017, the applicant was arrested in accordance with law and he has been in custody since. The applicant is presently before this Court seeking the grant of interim bail.
7. Learned counsel appearing on behalf of the applicant submitted that the applicant has been in custody for over 4 years and there is no basis for keeping him in judicial custody. It is submitted that he has clean antecedents and has never jumped bail and interim bail granted to him on previous occasions. Further, the conduct of the applicant has been satisfactory during his stay in jail. It is submitted that the applicant is currently facing trial before the learned Additional Sessions Judge, where he filed for interim bail, however, vide order dated 27th January, 2022, the same was rejected.
8. The applicant is praying for interim bail to attend the marriage of his niece (daughter of real sister) which is scheduled for 5 th February, 2022.It is submitted that the presence of the applicant is indispensable as the father of the bride had passed away many years ago, and as the maternal uncle (Mama) of the bride he needs to perform the ceremonies and make necessary arrangements for the wedding. It is, further, submitted that the applicant is the only brother of the mother of the bride and his parents are also aged and suffering from various ailments, owing to which they cannot make the required arrangements.
9. Per Contra, learned SPP appearing on behalf of the respondent/NCB vehemently opposed the interim bail application and submitted that the applicant has not approached this Court with clean hands and is hence, not entitled for the discretionary relief as prayed for. It is submitted that the Signature Not Verified Signed By:GAURAV SHARMA Signing Date:05.02.2022 14:54:08 applicant has committed a heinous crime and is under trial for contravention under Section 20(c)/23/29 of the NDPS Act for dealing in commercial quantity of contraband.
10. It is submitted that the applicant has deliberately concealed the relevant status of the family of the bride, in so far as, she has 4 paternal uncles (Chacha) in her family who may take care of the arrangements of the marriage and perform the required ceremonies.
11. Learned SPP on behalf of the respondent submitted that for the applicant to be released on interim bail, he has to meet the twin test mandate in accordance with Section 37 of the NDPS Act. It is submitted that the applicant is not entitled to be released on interim bail on the premise that the offence involved in the present case is restricted for grant of the bail unless the twin conditions under Section 37 of NDPS Act are met out and as such he does not meet the said requirement. Further, as per the mandate of law in the case of Union of India vs Ram Samujh, (1999) 9 SCC 429, the Hon'ble Supreme Court has observed that interim bail may not be granted in cases where it is detrimental to the interest of society. Hence, the present interim bail application is liable to be dismissed.
12. Heard the learned counsel for the parties and perused the material on record. Reply filed on behalf of the respondent vide Diary No. E132527/2022 has been taken on record and perused.
13. The instant application has been filed by the applicant who has been charged under the NDPS Act. There is no doubt that the offences under the NDPS Act are grave and heinous in nature and while granting interim bail under the Act certain special conditions need to be met with. Section 37 of the NDPS Act provides for twin test requirement to be factored in while Signature Not Verified Signed By:GAURAV SHARMA Signing Date:05.02.2022 14:54:08 granting interim bail. In the landmark judgment of State of Kerala vs Rajesh, (2020) 12 SCC 122, the Hon'ble Supreme Court has given its interpretation of Section 37 of the NDPS Act and has laid out that the enlargement of bail of offence under NDPS Act should not be preferred unless the twin conditions are satisfied. These conditions stipulate that the bail may be granted only when, firstly, the prosecution is given opportunity to oppose the bail application and secondly, that the court is satisfied that the accused is not guilty of the offence he is charged with. If either of the two conditions is not satisfied then the Court must refrain itself from granting bail to the accused.
14. The applicant before this Court, in his statement under Section 67 of the NDPS Act, has tendered his voluntary statement and admitted his involvement in the commission of the crime he has been alleged of. Although the establishment of guilt is a matter of trial, however, the voluntary statement given by the applicant casts a reasonable doubt on his innocence. Therefore, he does not meet the second condition of the twin test mandate under Section 37 of the NDPS Act.
15. Moreover, the grounds laid by the applicant are not found to be sufficient for the grant of interim bail, since, the verification by the respondent has revealed the fact that the bride/niece of the applicant has uncles on her father's side who may look after the arrangements of her marriage. Therefore, as such the applicant's presence is not found to be indispensable.
16. Keeping in view the facts, circumstances and the law laid down in light of the judgments of the Hon'ble Apex Court, this Court is not inclined to grant interim bail to the applicant.
Signature Not Verified Signed By:GAURAV SHARMA Signing Date:05.02.2022 14:54:0817. The application, is accordingly, disposed of.
CHANDRA DHARI SINGH, J FEBRUARY 4, 2022 Dy/ms Signature Not Verified Signed By:GAURAV SHARMA Signing Date:05.02.2022 14:54:08