Nazir Hussain vs State (Govt Of Nct Of Delhi) on 22 September, 2020

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Delhi High Court - Orders

Nazir Hussain vs State (Govt Of Nct Of Delhi) on 22 September, 2020

1. The present bail application has been filed on behalf of the petitioner seeking regular bail in FIR No. 25/2016 registered under Section 29 of the NDPS Act & Section 174A IPC at Police Station Special Cell, Lodhi Colony, Delhi.

2. Learned counsel for the petitioner submits that the petitioner is in judicial custody since 14.04.2017. He submits that neither the petitioner has been named in the FIR nor anything was recovered from him. The petitioner's name appeared in the disclosure statement of the co-accused. He further submits that the mobile/telephone number alleged to be belonging to the petitioner has not been recovered and even otherwise, the same is not registered in the name of the petitioner. He also submits that the amount which came into the petitioner's account has already declared in his Income Tax Returns.

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3. It is further submitted that so far, out of 28 witnesses, only 4 witnesses have been examined, out of which only examination-in-chief of two witnesses has taken place. He further submits that the petitioner is not involved in any other case.

4. Lastly, he has referred to the order dated 08.07.2020 passed by this Court in BAIL APPLN. 1345/2020 titled 'Mukesh Vs. State'. He submits that there is an irregularity in giving notice under Section 50 of the NDPS Act to the present petitioner and has referred to various orders passed by the Coordinate Benches in this regard.

5. Learned APP for the State, on the other hand, submits that the present is a case of conspiracy and charge sheet under Sections 21/29 of the NDPS Act has been filed. She submits that an information was received that some members of a big inter-state racket are indulging in drug trafficking and transporting drugs from Nagaland and other North-Eastern States to Punjab via UP, Delhi and NCR. Special Cell/Northern Range developed the information and the mobile numbers: 8493733249, 8726284545, 8415016400, 970665247 were kept under legal interception. She further submits that on 15.05.2016, on the basis of specific information, the co- accused namely Shariyat Ali @ Mulla & Gopal were intercepted at the Delhi border alongwith the truck no. UP 15 CT 1252 from Nagaland and a total of 69 kg of high quality Opium was recovered. While 45 kg Opium (in three packets of 15 kg each) was recovered from the cabin of the said truck, another 9 kg Opium was recovered from the possession of receiver Sartaz Ali & 15 kg Opium was recovered from the possession of receiver Javed BAIL APPLN. 2164/2020 Page 2 of 7 Ahmed. She submits that on 17.05.2016, another receiver namely Israr Ahmad @ Pahadi was also arrested at the instance of the accused persons.

6. On the basis of intercepted calls, CDRs of the mobile No. 8415016400 were also taken. During investigation, it came on the record that the aforesaid mobile number 8415016400 was also used by the present petitioner while opening his bank accounts in the Bank of Baroda, Dimapur, Nagaland as well as the Axis Bank, Dimapur, Nagaland. It is the case of the prosecution that certain amounts have also been received in the aforesaid bank accounts of the petitioner.

7. Learned APP for the State has referred to the transcripts of the intercepted calls between the petitioner and the co-accused. She has specifically referred the conversation dated 09.05.2016 which took place between the petitioner and co-accused Israr Ahmad @ Pahadi where a figure of 2.80 was mentioned. She submits that on the same day, an amount of Rs.2.80 lakh was deposited in the petitioner's account at Bank of Baroda at Dimapur from Bank of Karnataka, Shahjahanpur, UP, which is the place of residence of co-accused Israr Ahmad @ Pahadi. She further submits that on the same day i.e. on 09.05.2016, another conversation between Israr Ahmad @ Pahadi & Shariyat Ali @ Mulla was also recorded wherein the name of the present petitioner was mentioned. She further submits that the reference to the word 'Pakka' in the conversation, in fact, is a reference to 'Opium' in code language. She submits that during investigation, voice sample of the present petitioner was taken and as per the FSL report, the same was found to be identical to the voice recorded in the intercepted calls.

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She further submits that during investigation, the petitioner absconded and was declared Proclaimed Offender on 21.09.2016. After his arrest, a supplementary charge-sheet under Section 174A IPC & under Section 29 of the NDPS Act has been filed before the trial court. She also submits that rigors of Section 37 of the NDPS Act are applicable as the quantity seized is commercial in nature.

8. In rebuttal, learned counsel for the petitioner submits that the aforesaid phone number which is mentioned in petitioner's bank account does not belong to him. He further submits that no charge under Section 174A IPC has been framed against the present petitioner. He also submits that none of the conversations mentioned the name of any narcotic substance. At this stage, leaned APP submits that the I.O. shall be taking necessary steps seeking correction in the order on charge.

9. I have heard learned counsels for the parties.

10. In the present case, the Investigating Agency, on inputs received, intercepted the conversation between the present petitioner and the co- accused Israr Ahmad @ Pahadi. On the same day, the conversation between the co-accused Israr Ahmad @ Pahadi & Shariyat Ali @ Mulla was also recorded, where the name of the present petitioner was mentioned. In the first conversation, a figure of 2.80 has been mentioned and on the same day, an amount of Rs.2.80 lakhs was received in the bank account of the present petitioner. After 6 days, Shariyat Ali @ Mulla was arrested along with the truck from which seizure of about 45 kg of Opium was made from the cabin of the truck and another 24 kg was recovered from the two receivers at the spot.

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11. Section 37 of the NDPS Act reads as under:

"Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 58[offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail]"

12. The Supreme Court, in State of Kerala v. Rajesh reported as 2020 SCC OnLine SC 81, held as under:

"18. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed....

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20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, 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.

21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial 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. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

13. On the basis of intercepted calls between the petitioner and the co- accused and the receipt of corresponding amount credited in the bank account of the petitioner, that too from a place where the same co-accused resides, is not a mere coincidence. Although learned counsel for the petitioner has challenged the conversations by contending that the ownership BAIL APPLN. 2164/2020 Page 6 of 7 of mobile number is not brought on the record, but it again cannot be another coincidence that the same mobile number finds mention in the petitioner's own bank accounts where the money has also been received. In the facts of the present case, the rigours of Section 37 NDPS Act squarely apply and it cannot be said that there are reasonable grounds to believe that the petitioner is not guilty of the offence and he is not likely to commit any offence if released on bail.

14. The reliance placed on the bail orders in other cases cannot be of any help to the petitioner as they were passed in the facts of those cases. They have no applicability in the present case. Admittedly, no narcotic substance was recovered from the petitioner but he is charged under Section 29 NDPS Act.

15. Accordingly, the bail application is dismissed.

16. Nothing stated herein above shall be considered as an expression on the merits of the case, as the observations are only prima facie and made with the sole purpose to dispose of the bail application.

MANOJ KUMAR OHRI, J SEPTEMBER 22, 2020 p'ma BAIL APPLN. 2164/2020 Page 7 of 7

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Delhi High Court - Orders