Delhi High Court - Orders
Harun vs State (Govt Of Nct Delhi) on 24 February, 2022
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1918/2021
HARUN ..... Petitioner
Through: Mr. Hasim Alam and Mr. Tarique
Alam, Advocates.
versus
STATE (GOVT OF NCT DELHI) ..... Respondent
Through: Mr. Amit Chadha, APP with SI
Sudhir Kumar, Narcotics Cell, Crime
Branch
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 24.02.2022
1. This petition under Section 439 Cr.P.C is for grant of bail to the Petitioner in FIR No.111/2016 dated 05.07.2016 registered at Police Station Crime Branch for offences under Sections 20/25/29 of the NDPS Act.
2. Facts, in brief, leading to the instant Petition are as under:
a) It is stated that on 05.07.2016 a secret information was received at Crime Branch that one person namely Daya Shankar Yadav who used to procure Ganja from Orissa in a tourist taxi, which belonged to one Anuj Kumar Upadhyay. It is stated that the informer told that Shanker and Anuj would be coming to Bharaon Road, near Railway over bridge, New Delhi in their taxi between 8:45 AM to 9:15 AM to deliver Ganja to someone. It is stated that the information was given to ACP/Narcotics Cell, who ordered for a raid. The information was reduced into writing vide DD No. 04 at Narcotics Cell, Crime Branch and compliance under Section 42 NDPS Act was Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA BAIL APPLN. 1918/2021 Page 1 of 6 Signing Date:27.02.2022 15:52 made and a raiding party was formed. It is stated that at about 09:00 AM, one tourist taxi bearing No. DL-l-YE-6453 was intercepted at the instance of informer and two persons namely Daya Shankar Rai @ Shankar Yadav and Anuj Kumar Upadhyay were apprehended. It is stated that both the persons were informed about their legal rights to be searched in the presence of a Gazetted Officer or Magistrate and a written notice under Section 50 of the NDPS Act was served on them and they declined the offer to be searched in the presence of a Gazetted officer or Magistrate. It is stated that on searching the taxi, 80 Kg Ganja was recovered. Samples were drawn and recovered Ganja was seized. FIR No. 111/16 dated 05/07/2016 under Section 20/25/29 NDPS Act was registered at Police Station Crime Branch.
b) During investigation, Daya Shankar disclosed that Harun (Petitioner herein) used to procure Ganja from Odisha and he used to bring the same from Odisha to Delhi in the taxi of Anuj.
c) It is stated that efforts were made to arrest the Petitioner but he was not available and was declare as a Proclaimed Offender by the Trial Court vide order dated 08.01.2017. Charge-sheet was filed without arrest.
d) It is stated that the Petitioner was arrested in an Arms Act case in FIR No.328/2018 dated 19.10.2018 registered at Police Station Mainather, U.P., for offences under Sections 3/225 Arms Act. Petitioner was formally arrested in the instant FIR.
e) It is stated that vide order dated 15.01.2020 charges under Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA BAIL APPLN. 1918/2021 Page 2 of 6 Signing Date:27.02.2022 15:52 Section 29 read with Section 8/20 of the NDPS Act have been framed against the Petitioner.
f) Petitioner approached the Trial Court by filing an application for grant of bail. The same was dismissed vide order dated 02.11.2020 by the learned Special Judge, NDPS.
g) The Petitioner has thereafter approached this Court by filing the instant Petition.
3. Mr. Hasim Alam, learned counsel for the Petitioner, contends that the primary evidence against the petitioner is the statement given by the co- accused which is not admissible in view of the judgement of Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31. He further states that other than the disclosure statements the other material against the Petitioner are the CDRs of phone number 9897942286 and it is the allegation of the prosecution that the Petitioner was connected with the co-accused Anuj and Daya Shanker through this mobile phone. Learned Counsel for the Petitioner states that the mobile phone has not been recovered and investigation reveals that the mobile phone is in the name of one Munni Devi W/o Md. Umar R/o Hajrat Nagar Garhi, Sambhal, Moradabad, U.P., and not to the Petitioner herein. He, therefore, states that other than the disclosure statement of the co- accused and the CDR there is nothing against the Petitioner in the instant case and, therefore, the Petitioner be granted bail.
4. Per contra, Mr. Amit Chadha, learned APP for the State, submits that the Petitioner was absconding and was arrested in another case. He states that the Petitioner is not a resident of Delhi and if he is granted bail, there are high chances that he will abscond. He further states that the co-accused, Daya Shanker, who was granted interim bail for a period of one week by the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA BAIL APPLN. 1918/2021 Page 3 of 6 Signing Date:27.02.2022 15:52 Trial Court, has not surrendered and has now been declared as Proclaimed Offender. He states that the mobile phone could not be recovered because the Petitioner was evading arrest and he has destroyed the phone.
5. Heard Mr. Hasim Alam, learned counsel for the petitioner, and Mr. Amit Chadha, learned APP for the State, and perused the material on record.
6. Material on record discloses that primarily the Petitioner is sought to be roped in the present case on the basis of the disclosure statement made by the co-accused and on the basis of the CDR and the fact that he was using phone No. 9897942286 through which he was in contact with the co- accused - Anuj and Daya Shanker.
7. The Apex Court in Tofan Singh (supra) has categorically held that conviction of a person cannot be solely based on the disclosure statement of a co-accused and that cannot be permitted to be used as a witness. The only other piece linking the Petitioner with the case is that he was using mobile phone No. 9897942286. The CDRs show that mobile phone No. 9897942286 was used to contact Anuj and Daya Shanker. However, the said mobile has not been traced. Further the mobile number is in the name of one Munni Devi and investigation reveals that when she was interrogated, she stated that she does not know about the said mobile number or the user of the mobile number i.e. the Petitioner herein.
8. Grant or denial of bail under the NDPS Act is covered under Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under:
"37. 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;Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA BAIL APPLN. 1918/2021 Page 4 of 6 Signing Date:27.02.2022 15:52
(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A 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.]"
9. As noticed earlier disclosure statements cannot be used against the Petitioner and further there is nothing, at this stage, to state that the petitioner was using the said mobile number. In the absence of mobile phone and any other substantial material, this Court is of the opinion that there are reasonable grounds for believing that the Petitioner is not guilty of offences under Sections 20/25/29 of the NDPS Act. This Court is, therefore, inclined to grant bail to the Petitioner on the following conditions:
i. The petitioner shall furnish a personal bond in the sum of Rs.15,000/- with two sureties in the like amount, to the satisfaction of the Trial Court, one of the sureties shall be a relative of the petitioner.
ii. The petitioner states that he will reside at E-1754, JJ Colony, Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA BAIL APPLN. 1918/2021 Page 5 of 6 Signing Date:27.02.2022 15:52 Bawana, North West Delhi-110039. The Trial Court is requested to accept the bail bonds only after ascertaining the said address. The petitioner shall continue to reside at the same address till further orders.
iii. The petitioner shall report to the concerned Police Station every day at 10:30 AM and he shall be released within half an hour after completing necessary formalities.
iv. The petitioner shall drop his pin on the Google Maps to the Investigating Officer so that his location is available to the Investigating Officer at all times.
v. The petitioner shall not leave NCT of Delhi without the prior permission of the Court.
vi. The petitioner shall attend all the proceedings before the Trial Court.
vii. Violation of any of the above-mentioned conditions shall entail immediate cancellation of bail granted to the petitioner.
10. It is made clear that the observations made in this Order are only for grant of bail and cannot be taken into consideration during trial.
11. The petition is disposed of with the above observations along with pending application(s), if any.
12. Let a copy of this Order be transmitted to the concerned Jail Superintendent.
SUBRAMONIUM PRASAD, J FEBRUARY 24, 2022 Rahul Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA BAIL APPLN. 1918/2021 Page 6 of 6 Signing Date:27.02.2022 15:52