Delhi High Court - Orders
Somdev vs The State on 3 January, 2022
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 3432/2021
SOMDEV ..... Petitioner
Through: Mr. Tushar Sharma, Advocate
(D/1728/14).
versus
THE STATE ..... Respondent
Through: Mr. Amit Chadha, APP for the State
SI Prakash, PS Crime Branch.
State with SI Sunil, PS Model Town
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 03.01.2022
1. The present application has been filed under Section 439 CrPC praying for grant of regular bail in FIR No. 21/2020 dated 25.01.2020 registered at Police Station Crime Branch, Nand Nagri for offences under Section 188, 420, 468, 471, 120 B IPC.
2. Briefly stated, the facts leading up to this case are given as follows:-
i. Information was received at Police Station Crime Branch that one Ajay Kumar who is resident of Mahendergarh, Haryana was selling SIM cards unauthorizedly for a sum of Rs.200/-. His location was given to the police by the informant and was stated that he would arrive at Pummi Sweets, Dilshad Garden between 12:00-1:00 PM. DD No.06 dated 25.01.2020 was made recording the information given.BAIL APPLN. 3432/2021 Page 1 of 7
ii. A team for raiding accused Ajay Kumar was formed and they, alongwith the informant reached the spot at 11:30 AM. Bystanders were requested to participate in the raid as witnesses but stating personal reasons they refused to join the raid proceedings. At about 12:10 PM a person about 35 years old was seen at the spot waiting for someone outside Pummi Sweets, the informant identified him as Ajay and the team apprehended him. A search was conducted on his person and the bag he was carrying with him. Ten BSNL SIM cards were recovered from his bag and one Rs.2000/- currency note was found in his possession. Further, two large polythene bags containing 15 Vodafone SIM cards and 142 BSNL SIM cards were recovered. All the said items were put in a plastic box and sealed, and a seizure memo was prepared. Accused Ajay Kumar was taken into Police custody.
iii. Accused Ajay Kumar in Police custody disclosed that the SIM cards were supplied to him by one Rakesh Kumar, R/o Village- Satnali, Madhopur, Haryana and disclosed that he would use the SIM cards to buy electronic items from Flipkart and Amazon and would keep the original product and return back a duplicate to the companies. He stated that he would sell the original electronic items in the market and he had rented a flat in Gurgaon from where he used to operate. The police conducted a search in the said rented flat and found numerous electronic devices worth 3-4 lakh rupees and more SIM cards and mobile phone from the said flat i.e. House No.73, 2 nd Floor, Ashok Vihar, Gali No.B-6, Gurgaon, Haryana.BAIL APPLN. 3432/2021 Page 2 of 7
iv. During investigation, a Section 91 Cr.P.C. notice was served on Vodafone and BSNL to provide for the SIM card numbers, Customer Application Form (CAF) and their present status, to find out whether they were in active usage. The two mobile phones recovered from the flat of the accused Ajay were sent to the forensic laboratory for examination and their CDRs were called for. It was noticed that numbers were issued in the names of different persons but the identity proofs mentioned in the Customer Application Forms were found to be discrepant from the names therein. It was seen that SIM cards were issued by the petitioner herein R/o, Village-Usmapur, Mahendergarh, Haryana. The Police made inquiries from persons whose ID's had been used for the issuance of SIM cards and the said people denied using or buying the SIM cards.
v. Chargesheet was filed on 23.03.2020. On the disclosure statement of accused Ajay, the petitioner was arrested on 24.08.2020. It is stated that the petitioner and co-accused Rakesh Kumar used to sell electronic items and had the license to also sell SIM cards. Investigation revealed that accused Ajay Kumar had obtained 167 SIM cards from the petitioner and co-accused Rakesh Kumar and used the SIM cards to make purchases of electronics from Flipkart and Amazon which would be retained and duplicates items would be returned to them and the original product would be sold for a higher price in the market.BAIL APPLN. 3432/2021 Page 3 of 7
3. The petitioner applied for grant of bail from the Trial Court for the second time and his application was dismissed vide order dated 25.08.2021 on the ground that there was no change in circumstance which could impress the court to grant the petitioner bail.
4. The Petitioner, then approached this Court praying to be released on regular bail. The petition vide order dated 09.08.2021, was dismissed as withdrawn, with liberty to seek bail from the Trial Court.
5. Mr. Tushar Sharma, learned counsel for the petitioner submits that the Petitioner is the breadwinner of the family and that his family in facing financial turmoil due to his incarceration. He submits that chargesheet stands filed and the supplementary chargesheet has also been filed. He submits that there is no reason for the petitioner's further custody. He submits that co- accused Rakesh Kumar, against whom there are the same allegations as are against the petitioner herein has been enlarged on bail by the Trial Court on 01.07.2021 and the petitioner claims parity with the co-accused Rakesh Kumar.
6. Mr. Sharma contends that the entire case of the prosecution hinges on the disclosure statements given by Ajay Kumar and there is no substantive or independent proof adduced to prove the petitioner's involvement. He submits that there is no question of the petitioner tampering with the evidence or influencing the witnesses as evidence has already been collected and there is no reason to deny bail to the petitioner.
7. Per contra, Mr. Amit Chadha, learned APP objected to the grant of bail stated that the petitioner was initially evading arrest for six months. He points out that this is the material difference for denying parity to the petitioner as co-accused Rakesh Kumar had joined investigation and BAIL APPLN. 3432/2021 Page 4 of 7 Petitioner had been absconding. He further contends that the Petitioner was in a position of trust where mobile phone users would give their identity proofs for buying SIM Cards and the Petitioner divulged their personal identities for their unlawful gains.
8. Mr. Chadha contended that the Petitioner would indulge in the same activity if released on bail. He submits that the CDR of main accused Ajay Kumar depict that the said accused was regularly in touch with the Petitioner for supplying/issuing illegitimate SIM cards and there are WhatsApp chats between the two that show a deep-rooted conspiracy.
9. Heard Mr. Tushar Sharma and Mr. Amit Chadha APP, learned counsels appearing for the respective parties and perused the papers on record.
10. Investigation has been completed. The Chargesheet shows that the petitioner is charged under Section 188,420, 468,471 r.w. 120-B IPC and the allegation specific to the Petitioner is that he issued SIM cards on identification cards of persons who had visited his electronic store without their knowledge and consent. The role of co-accused Rakesh has deemed to have the same as the Petitioner as per the supplementary chargesheet.
11. The Court while granting or rejecting bail has to evaluate certain factors, in the given facts of a case, which have been consistently upheld by the Supreme Court. The foremost consideration is the nature and seriousness of offence which the accused is charged with. The second is the propensity of the accused to exert influence on the witnesses or tamper with the evidence. The third is whether the accused will evade the process of law and justice. The fourth is the past criminal track record or antecedents of the accused. The fifth is whether an accused will be a menace to society by BAIL APPLN. 3432/2021 Page 5 of 7 committing the same offence if released on bail. These considerations have been confirmed and reaffirmed by the Supreme Court in Ram Govind Upadhyay V. Sudarshan Singh (2002) 3 SCC 598. This Court has also affirmed the above principles of bail in Jitender Kumar V. Govt. of NCT (2016) SCCOnline Del. 1170
12. The evidence and other pertinent materials stand collected by the Police and the Forensic Laboratory report on the CDR and Whatsapp conversations are pending submission before the learned Trial Court. The accused, at this stage is not in a position of influence the witnesses or tamper with evidence.
13. It is noted from the record and has been argued extensively that the co-accused Ajay Kumar has previously been granted bail by the Ld. Trial Court and co-accused Rakesh Kumar was granted bail by Ld. Trial Court on 1.7.2021. The Trial Court erred in not extending the grant of bail to the Petitioner on grounds of parity with co-accused Rakesh Kumar considering the roles ascribed by the prosecution and given in the supplementary chargesheet are the same. The Trial Court incorrectly proceeded to observe that there is no material change in circumstance which would entitle the Petitioner to bail.
14. Therefore this Court is inclined to grant bail to the Petitioner on the fulfilment of the following conditions-
(a) The Petitioner shall furnish a bail bond of Rs. 30,000/- with two sureties of the like amount, one of them being a relative of the Petitioner to the satisfaction of the Trial Court.
BAIL APPLN. 3432/2021 Page 6 of 7(b) The petitioner is directed to give all his mobile numbers to the Investigating Officer and shall keep them operational at all times.
(c) The Petitioner shall reside at the address given in his Aadhar Card i.e. Village Ushmapur, Post Mandola, District Mahendergarh, Haryana-123029, till further orders.
(d) The Petitioner shall report to the Police Station - Mahendergarh once in every 15 days i.e. on 15th and 30th day of every calendar month.
(e) The Petitioner shall attend all the proceedings before the trial Court.
(f) The petitioner is directed not to tamper with evidence or influence witnesses.
(g) The Petitioner shall not indulge in the same activity again.
(h) Be it noted, that violation of any conditions shall result in the immediate cancellation of bail of the Petitioner.
15. Be it noted that this Court has not made any observations on the merits of the case and this Order is only for grant of bail.
16. Accordingly, the petition is disposed of along with the pending application(s), if any.
17. Let a copy of the Order be transmitted to the concerned Jail Superintendent.
SUBRAMONIUM PRASAD, J JANUARY 03, 2022 hsk BAIL APPLN. 3432/2021 Page 7 of 7