Delhi High Court
Kassu Ram vs State on 13 April, 2005
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. The learned counsel for the petitioner submitted that no recovery was made from the petitioner. However, an amount of about 1 kg of smack is alleged to have been recovered from one Mohd. Rafiq, who was stated to be in the company of the petitioner. The said 1 kg of smack is alleged to have been carried by the co-accused Mohd. Rafiq in a 'thela'. The learned counsel for the petitioner submitted that the prosecution case is that on the basis of secret information it was revealed that two persons, that is, the petitioner and the co-accused (Mohd.Rafiq) would be found carrying contraband and it is on the basis of this information that the accused were apprehended and a recovery of 1 kg of smack is said to have been made from the person of Mohd. Rafiq. It is an admitted case that the petitioner was searched and nothing was recovered from him.
2. In this context, the learned counsel for the petitioner has relied upon three decisions : two of this Court and one of the Supreme Court. The first decision relied upon by the petitioner is the case of Dalbir Singh @ Dhulia v. State Crl.M.No.8/2003) wherein this Court by an Order dated 4th February, 2003 under similar circumstances granted bail to the accused therein who was found not to be in possession of any contraband. In that case, the said Dalbir Singh and co-accused (Raj Kumar) on 27th September, 2002 were apprehended and co-accused (Raj Kumar) was found to be carrying five boxes with him containing a total of 25 kg of opium. Nothing was recovered from Dalbir Singh. In that case also, on the basis of some secret information the accused were apprehended. It was held in the Order dated 4th February, 2003 that, prima facie, the evidence with regard to the secret information was not admissible since nothing was recovered from the petitioner and there was no evidence with the prosecution to show that the petitioner (Dalbir Singh) and the co-accused (Raj Kumar) carried this contraband together. In that view of the matter, the Court was pleased to release the petitioner (Dalbir Singh) on bail.
3. The learned counsel for the petitioner then referred to the decision of the Supreme Court in the case Bhugdomal Gangaram and Ors. v. The State of Gujarat (1983 Crl.L.J. 1276). In particular, reference was made to the contents of paragraph 13 wherein the Court observed, with regard to the information which the prosecution had received, as under:-
"But since the informant has not been examined as a witness the evidence of P.W.12 that he was informed that accused nos.3 and 4 would be coming behind the truck in a taxi is not admissible."
4. Thus, according to the learned counsel for the petitioner, the secret information by itself is inadmissible unless the informant is examined and that is what has been held by the Supreme Court in the aforesaid decision.
5. The learned counsel further pointed to the decision of this Court passed on 13th February, 2003 in the case of Subhash v. State (Crl.M.N.3940/2002) wherein this Court under similar circumstances, where recovery was made from the co-accused but not from the accused seeking bail, observed as under:-
"The mere fact that the petitioner was found present at the spot along with someone who was carrying the contraband would not be sufficient to prima facie hold that the petitioner was also in possession of the contraband or had abetted or conspired with co-accused regarding the contraband. Thus, there are reasonable grounds to believe that the petitioner is not guilty of offence and if released on bail, would not commit the offence again.
And, observing so, this Court granted bail to the petitioner in that case. The learned counsel for the petitioner submitted that in view of these decisions it is apparent that the petitioner is entitled to bail.
6. The learned counsel for the State submitted that there was secret information that the two accused would be coming together and they are the residents of the same district and therefore there was substance enough to show that there was a meeting of minds. Thus, since the recovery was of an amount about 1 kg of smack, Section 37 of the NDPS Act would come into play and, accordingly, the petitioner would not be entitled to bail.
8. Upon considering the arguments advanced by the learned counsel for the parties, it appears that apart from the secret information that the prosecution is alleged to have received, there is no other evidence to link the present petitioner with the recovery of the contraband from the co-accused (Mohd.Rafiq). Since the said secret information would not be admissible, in view of the aforesaid decisions, it is clear that the petitioner cannot be, prima facie, linked with the recovery of the contraband. That being the case, even if it is assumed that Section 37 of NDPS Act applies, there are reasonable grounds for believing that the petitioner is not guilty of the offence.
9. The learned counsel for the petitioner also submitted that the present petitioner has no criminal antecedents and therefore there is no question of there being any likelihood of him committing any offence while on bail. Accordingly, the petitioner is directed to be released on bail on his furnishing a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the concerned Court.
The application stands disposed of.