Delhi High Court - Orders
Yogesh @ Goverdhan vs State (Nct Of Delhi) on 4 March, 2022
Author: Rajnish Bhatnagar
Bench: Rajnish Bhatnagar
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 3984/2021
YOGESH @ GOVERDHAN ..... Petitioner
Through: Mr. Muddasir and Mr. Kunal
Goswami, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Ms. Rajni Gupta, APP for the State
with SI Sudhir Kumar.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
% 04.03.2022
1. This is a petition filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in FIR No. 183/2018 under Sections 20 and 25 NDPS Act registered at Police Station Crime Branch Central.
2. In brief the facts of the case are that on 14.07.2018 at about 03.15 AM, secret information was received by SI Omvir Dabas that one person, namely, Yogesh @ Goverdhan (Petitioner herein) R/o Palwal, Haryana, Is indulged in supply of Ganja in Delhi after procuring it from Orisaa and Chhattisgarh and on that day, he would come between 04.30 AM to 05.30 AM with a huge consignment of Ganja, for supplying it to someone near Rajghat Red Light, in front of Gandhi National Museum, Delhi. The secret informer was produced before Inspr. Narcotics Cell, who after getting satisfied with the nature of information, conveyed the same to Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:14.03.2022 15:07 ACP/Narcotics Cell. Instruction was given by ACP/Narcotics Cell to conduct raid and to take appropriate legal action. Compliance of Section 42 NDPS Act was done and DD entry was lodged vide DD No. 02 dated 14.07 2018, Narcotics Cell, Crime Branch and copy of the DD entry was produced before Inspr. Narcotics Cell Thereafter, a raiding team was constituted by SI Omvir Dabas comprising of staff of Narcotics Cell and a trap was laid by raiding team near Rajghat Red Light, Delhi. At about 04.30 AM one silver color Honda City Car bearing No. DL-1N-9193 arrived and stopped near the gate of Gandhi National Museum, Delhi. The driver of the car got down and started looking for someone and he was identified as Yogesh @ Govardhan by the secret informer & the secret informer left the spot. The said person was apprehended and upon enquiry he was identified as Yogesh @ Govardhan S/o Jasvir Singh R/o 97, Rajiv Nagar, near Jeewan Dhara Hospital, Palwal, Haryana, age 32 years, the Petitioner. He was informed about the secret information and a notice u/s 50 NDPS Act was served upon him and he was explained about the meaning of Gazetted officer and a Magistrate but he refused in writing to be searched before a Gazetted officer or Magistrate. A cursory personal search of the accused was conducted during which nothing illegal could be found. From the search of the car in which the accused had arrived there three plastic bags were recovered from the backseat of the car. On checking and weighing, the bags were found containing total 110 kgs Ganja. Samples were drawn from the seized contraband and all the mandatory provisions of NDPS Act were duly complied with. After following due procedure, the case vide FIR No. 183/2018 dated14.07.2018, under Sections 20/25 NDPS Act was got registered at P.S. Crime Branch.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:14.03.2022 15:073. I have heard the learned counsel for the petitioner and the learned APP for the State and perused the status report filed by the state.
4. It is submitted by the learned counsel for the petitioner that the petitioner has been falsely implicated in this case and is in judicial custody since 14.07.2018. It is further submitted that the real story is that on 13.07.2018 at 8 pm, the petitioner was at UP-Haryana border-Kosi kala along with his two friends namely Vijay and Sandeep, both are the neighbors of the petitioner in his village and that after a while two cars, one was Honda city (voler car) which was GPS enabled and other car was of crime branch arrived to the petitioner and some peoples came out of car and forcefully they got the petitioner set in the Honda City (voler car) and planted the recovery. It is further submitted that the car is a taxi car of the company, namely, Voler Car, which gives car on rent and the police has further failed to provide any evidence which can prove that the car was booked by the petitioner. It is further submitted that the taxi car is GPS enabled which was also mentioned in Para no. 5.2 of the official terms and condition of company and thus, the question arises as to why police did not provide GPS Track report of the voler car which can prove the petitioner and car's actual location at the time of offence. It is further submitted that the prosecution has failed to ensure mandatory compliance of Section 50 of the NDPS Act inasmuch as the alleged recovery/search of the ganja made by the raiding police party from the petitioner's body was not done in accordance with the procedure prescribed under Section 50 of the NDPS Act. It is further submitted that chargesheet has already been filed and no purpose will be served by keeping the petitioner in judicial custody.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:14.03.2022 15:075. On the other hand, learned APP vehemently opposed the bail application and has argued on the lines of the status report. It is submitted that the recovery of contraband from the possession of the petitioner is of commercial quantity i.e., 110 Kg Ganja and therefore, embargo of Section 37 NDPS Act shall apply. It is further submitted that all the mandatory provisions of NDPS Act have been complied with and the personal search of the petitioner was conducted and original notice under Section 50 NDPS Act, one Adhar Card No. 202052215521, DL No. 02201000009082 (Wazirpur Authority) and Cash Rs 2515/- only were taken into police possession through personal search memo. It is further submitted that the Car Honda City No. DL-1N-9193 used for transportation of Ganja was hired by the accused Yogesh @ Goverdhan/Petitioner from Voler Car Pvt. Ltd., Vasant kunj, Delhi on 01.12.2018 and the recovered Honda City Car has been released on Superdari by the Ld. trial Court to the owner namely Naresh Kumar s/o Ajay Chand R/o Nagia Krishan Lai. Foundary Nagar, Near Sayad, Naraaich, Agra, UP. It is further submitted that statement of Sh. Naresh Kumar has also been recorded under Section 161 Cr.P.C. in this regard. It is further submitted that only three witnesses have been examined and the prosecution evidences are still continuing. Lastly, it is submitted by the Ld. APP that keeping in view the serious allegations against the petitioner, there is strong likelihood of him absconding if released on bail.
6. In the present case, three plastic bags were recovered from the backseat of the car containing total 110 kgs of Ganja. It is also pertinent to note that the recovered substance falls under the commercial quantity and embargo of Section 37 of the NDPS Act is applicable.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:14.03.2022 15:077. The scheme of Section 37 NDPS Act reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
8. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantially probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.
9. Therefore, looking into the entire facts and circumstances of this case and also keeping in view that 110 kgs of Ganja has been recovered from the petitioner, which is of commercial quantity, there are no reasonable grounds for believing that the petitioner is not guilty of the offence at this stage. That being the case, the limitations prescribed for the grant of bail under Section 37 NDPS Act are not satisfied and thus, no benefit can be given to him at this stage. The bail application is, therefore, dismissed.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:14.03.2022 15:0710. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case.
RAJNISH BHATNAGAR, J MARCH 4, 2022 ak Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:14.03.2022 15:07