Rajesh Kumar Sharma @ Manoj vs State on 14 September, 2023

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Delhi High Court - Orders

Rajesh Kumar Sharma @ Manoj vs State on 14 September, 2023

1. The present application under Section 439 read with Section 482 of the Code of the CrPC seeks regular bail in case FIR No. 218/2018, dated 29.08.2018 under Sections 22(c) and 29 of the NDPS Act and Sections 63 and 65 of the Copyright Act, 1957 registered at PS Crime Branch.

2. Briefly stated, the facts of the present case are as under:

i. On 20.08.2018, secret information was received at about 04:00 PM at the office of the Crime Branch that one Sunil Sharma alongwith his associates - Rajesh (the present applicant) and Nagesh were involved in illegally supplying 'Tramadol' to Kolkata and other parts of North- East India. Information was received that Sunil Sharma, Rajesh and Nagesh would arrive at a spot near the Minto Road Bus Stop, Bhavbhooti Marg, New Delhi with consignments of Tramadol in two BAIL APPLN. 1163/2023 Page 1 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 separate cars and that Sunil Sharma would further handover these consignments to a man for sending them to Kolkata.

ii. Acting on the said information, a team of police personnel reached the above spot and at about 07:45 PM spotted an Elantra car bearing registration number DL 7C P 0927, being driven by Sunil Sharma. He stepped out of the car and waited for some time. After 10 minutes, a Tata Indica car bearing registration number UP 14 BR 2362, being driven by Rajesh with Nagesh in the passenger seat arrived at the spot. Rajesh took one parcel out of his car, which Nagesh handed over to Sunil who put it in the trunk of his car. Rajesh took another parcel out and handed over the same to Sunil, at which time the raiding team apprehended all three of them at about 08:00 PM.

iii. Upon a search of the Elantra car bearing registration number DL 7C P 0927, 156 boxes of Spasmo Proxyvon Plus capsule were recovered. From the search of Red colour Tata Indica car bearing registration number UP 14 BR 2362,112 boxes of Spasmo Proxyvon Plus capsule were recovered. From the personal search of Nagesh Sharma, one white coloured parcel containing 56 boxes of Spasmo Proxyvon Plus capsule was recovered. Each of these boxes contained 18 strips of 8 capsules each. Each of these were hard gelatin capsules containing Dicyclomine Hydrochloride I.P. 10 mg, Tramadol Hydrochloride I.P. 50 mg and Acelaminophen 325 mg.

iv. Out of the materials recovered, samples were drawn and seized and the present FIR was registered.

v. During investigation, the accused persons were interrogated and they admitted to their involvement in the alleged offences. It was also BAIL APPLN. 1163/2023 Page 2 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 revealed that a part of the recovered Spasmo Proxyvon Plus capsules were procured by them through black marketing channels and part of it was manufactured by them at a factory, set up in Ghaziabad. vi. During investigation, it was discovered that Sunil Sharma was the mastermind behind the entire racket that dealt in illegal drugs. He financed the illegal drug business. Sunil Sharma was also involved in illegally supplying Buprenorphone injections to his contacts in various states. Based on his disclosure, 1.68 lakh ampoules of Buprenorphine injection were recovered from two courier companies

- Madhur Courier and Om Logistic.

vii. Sunil Sharma disclosed that his associate and proprietor of M/s Banti Pharma - Vineet Garg had booked a consignment of 9000 ampoules of Buprenorphine injections to their contacts in Bikramganj, Bihar. Accordingly, on 03.09.2018, the said consignment was intercepted and a representative of Madhur Courier presented 6 parcels of Buprenorphine injections containing 18,000 ampoules, out of which 3,000 were without any label. On enquiry, the said representative stated that the consignment was booked by one M/s Banti Pharma and was bound to M/s Deep Kumar Medical Agency in Bikramganj, Bihar.

viii. It was further revealed that Vineet Garg had booked another large consignment of Buprenorphine injections to Ideal Cheminal Works Ltd, Kanpur through Om Logistics. Accordingly, on 10.09.2018, the said consignment was intercepted and a representative of Om Logistiocs presented 75 parcels containing 1.5 Lakh ampoules of Buprenorphine injections, out of which 8,000 were found to be BAIL APPLN. 1163/2023 Page 3 of 11 This is a digitally signed order.

ix. During investigation, it was discovered that the accused persons used to send the drugs through courier/railway parcels, in the names of different medicine shops in different cities, chosen at random. However, the consignees whose details were mentioned on these parcels did not know the sender, i.e., the accused persons. The said accused persons used to track the real time status of these parcels and their contacts would take delivery directly from the godowns of the courier company, after the parcel reached the destination city. x. Sunil Sharma intended to send the recovered Spasmo Proxyvon Plus capsules to his contact Shamim in Kolkata.

xi. Rajesh Sharma (the present applicant) was also stated to be one of the main persons involved in the running of the illegal drug business. During interrogation, he disclosed that had his own Lathe machine setup in the name of 'OSATA Industry' in Shihani, Ghaziabad and had arranged for a private and isolated accommodation in Nandgram, Ghaziabad for running a manufacturing unit. He had known accused Sunil Sharma since 2014 and lured Nagesh Shamra into getting involved with them on the pretext of making money quickly and easily.

xii. The applicant further disclosed that he procured preparatory salts/raw materials like Tramadol, Dicycloamine and Acetaminophen from his business associate - Vijay Dubey, which were then used for preparing the recovered Spasmo Proxyvon Plus capsules. The applicant and Nagesh Sharma also carried out the work of filling, packaging and blistering.

BAIL APPLN. 1163/2023 Page 4 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 xiii. During the course of further investigation, accused Vijay Dubey @ Moni was also arrested and during interrogation, he disclosed that he met Rajesh Sharma though a business acquaintance, who then introduced him to Sunil Sharma. Vijay Dubey had supplied raw material, i.e., Tramadol, Acetaminophen and Dicyclomine to accused persons 2-3 times through Kalpana Travels. The said information was corroborated by a bus conductor of Kalpana Travels and the Call Detail Record ('CDR') analysis of the present applicant/ Rajesh Sharma.

xiv. The applicant/accused Rajesh Sharma was in constant touch with the conductors of Kalpana Travel Buses namely Kuber Singh and Hari Singh as is reflected from the Call Detail Record (CDR) of his mobile number 8077298066. While conversation with the conductors of Kalpana Travel Buses, accused/applicant had introduced himself with fake name as 'Manoj'. Beside this, he himself had collected the above raw material in blue drums from Bhairo Mandir Parking near Pragati Maidan. Further scrutiny of his Call Detail Record (CDR) revealed that his location was near Bhairo Mandir Parking on 16.6.2018 and 19.06.2018 which is in coherence with his disclosure statements and the statements given by conductors of Kalpana Travel Buses. xv. On 30.08.2018, the accused persons led the police party to their factory setup in Ghaziabad. During the search of the said factory, raw materials, printing and packaging materials and machine parts were recovered and seized. It is the case of the prosecution that the said premises was arranged on rent by the present applicant/Rajesh Sharma. The keys of the said premises were found in his possession BAIL APPLN. 1163/2023 Page 5 of 11 This is a digitally signed order.

xvi. Vineet Garg was arrested on 12.09.2018, and under interrogation, he disclosed that he joined the other co-accused persons because he was in dire need of money. He met Sunil Sharma through one Harish Singhal - both of whom were stated by him to be financing the entire illegal drug business. He disclosed that he supplied the drugs to their contacts on the directions of Sunil Sharma and Harish Singhal. xvii. On 24.09.2018, Afroz Alam was arrested who disclosed that he was contacted by Sunil Sharma regarding supply of some materials. Sunil Sharma promised him to pay 10 times the normal price of the products and consequently, Afroz Alam supplied materials like printed boxes, PVC, labels of companies etc. xviii. The CDRs of all the accused persons were analysed and it was found that they were in regular touch with each other telephonically. They were also in regular touch through WhatsApp messenger. The present applicant was particularly in regular touch with Sunil Sharma and Nagesh Sharma.

xix. Chargesheet in the present case was filed qua Sunil Sharma @ Rahul, Rajesh Sharma @ Manoj (the applicant herein), Nagesh Sharma, Vijay Dubey @ Moni, Vineet Garg @ Banti and Afroz Alam. xx. Vide order dated 23.10.2019 passed by the Learned Special Judge (NDPS) - 1, Central, Tis Hazari Courts, Delhi, charges have been framed. Charges qua the present applicant have been framed under Section 63 of the Copyright Act and Sections 22(c) and 29 of the NDPS Act.

3. Learned counsel for the applicant submits that co-accused Nagesh BAIL APPLN. 1163/2023 Page 6 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 Sharma has been granted bail by this Court vide judgment dated 28.03.2023 passed in BAIL APPLN. 3185/2022 titled 'Nagesh Sharma v. The State (N.C.T of Delhi)'. It is further pointed out that the aforesaid judgment was challenged before the Hon'ble Supreme Court in SLP (Crl.) Diary No. 28838/2023. The said SLP has been dismissed by the Hon'ble Supreme Court vide order dated 14.08.2023.

4. It is submitted that the applicant is similarly situated to the aforesaid co-accused Nagesh Sharma and the judgment granting him bail applies to the facts of the present case as well. It is submitted that co-accused Nagesh Sharma was granted bail on account of non-compliance of the second proviso to Section 42(1) and Section 42(2) of the NDPS Act. It is further stated that the applicant has been in custody for more than 3 years. He has been released on interim bail on various occasions and has surrendered in time without misusing the liberty granted to him. It is further pointed out that out of 45 witnesses cited by the prosecution, only 3 have been examined and the trial is likely to take a long time.

5. Per contra, learned APP for the State submits that the order passed by the Hon'ble Supreme Court dismissing the aforesaid SLP records as under:

"Delay condoned.

Having heard learned senior counsel for the petitioner and having perused the order impugned, we find that in the facts and circumstances of the instant case, no interference is warranted. In view of the above, the special leave petition stands dismissed.

Pending application(s), if any, shall stand disposed of."

(emphasis supplied) It is submitted that in view of the above, the applicant cannot claim parity with co-accused Nagesh Sharma as the facts and circumstances of the BAIL APPLN. 1163/2023 Page 7 of 11 This is a digitally signed order.

6. Learned APP submits that evidence has come on record that the present applicant was in constant touch with the conductors of the buses plied by Kalpana Travels and it has come on record that he himself collected the raw material in drums supplied by co-accused Vijay Dubey from the Bhairon Mandir parking near Pragati Maidan. It is further submitted that the present applicant has rented the factory premises from where the raw material, printing and packaging materials and other machine parts were recovered and seized.

7. Heard learned counsel for the parties and perused the record.

8. This Court, while granting bail to co-accused Nagesh Sharma has already given a prima-facie view with regard to non-compliance of the mandatory provisions of Sections 42(1) and 42(2) of the NDPS Act. It is further noted that so far as the contention of learned APP for the State with regard to the connection of the present applicant with the factory as mentioned above, it may be noted that there is no recovery of any contraband from the said factory. Similarly, the statement made by the conductors of the Kalpana Bus Travels as aforesaid will not have a bearing for the purposes of the present application. So far as the statement of the bus conductors is concerned, it is relevant to note that in the said statements, there is nothing stated with regard to the contents of the drums allegedly given by the applicant. Further, there is no recovery with respect to the contents of the said drums.

9. This Court has already granted bail to similarly placed co-accused Nagesh Sharma vide judgment dated 28.03.2023 passed in BAIL APPLN. 3185/2022 titled 'Nagesh Sharma v. The State (N.C.T of Delhi)'. By order of BAIL APPLN. 1163/2023 Page 8 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 the same date passed in BAIL APPLN. 1904/2023 titled 'Vijay Dubey @ Moni v. State Govt. of NCT of Delhi', co-accused Vijay Dubey has also been granted bail.

10. Vide order dated 13.07.2023 passed in Special Leave to Appeal (Crl.) 4169/2023 titled Rabi Prakash v. The State of Orissa, the Hon'ble Supreme Court held that prolonged incarceration of a person overrides the statutory restriction contained in Section 37(1)(b)(ii) of the NDPS Act. It was held as under:

"2. The prosecution case appears to be that the police party while on patrolling duty on 02.10.2019 at about 12.30 p.m. on Nandapur- Semiliguda road MDR-55, spotted one full body twelve wheeler Truck (Eicher) bearing No.EB-13-BD-5753 coming from Nandapur side at a high speed and accordingly they chased and detained the truck at Bodenga Chhak and found three persons boarded in the said truck including the driver. Eventually, 247 kg. Ganja was recovered from the truck. The petitioner was one of the occupants of the truck and was arrested at the spot. He has been in custody for more than three and a half years. There are no criminal antecedents against the petitioner.

3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time.

4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

(emphasis supplied)

11. As per the nominal roll dated 08.08.2023, the present applicant was BAIL APPLN. 1163/2023 Page 9 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 arrested in the present case on 29.08.2018 and has been in custody for 03 years 01 month and 07 days. It is further reflected from the nominal roll that the applicant was released on interim bail on various occasions and had not misused the liberty granted to him. As pointed out hereinabove that out of 45 witnesses cited by the prosecution only 3 have been examined.

12. In view of the facts and circumstances of the present case, the application is allowed and the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to the following conditions:

i. The memo of parties shows that the applicant is residing at 79, Radha Kunj, Nandgram, Ghaziabad, Uttar Pradesh. In case of any change of address, the applicant is directed to inform the same to the Investigating Officer.

ii. The applicant shall report shall report at PS Crime Branch twice in a week, i.e., on every Wednesday and Friday at 10:30 AM and the concerned officer is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities. iii. The applicant shall not leave India without the prior permission of the learned Trial Court.

iv. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. v. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witness in any manner.

BAIL APPLN. 1163/2023 Page 10 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52 vi. In case it is established that the applicant has indulged in similar kind of offences or tried to tamper with the evidence, the bail granted to the applicant shall stand cancelled forthwith.

13. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case pending before the learned Trial Court.

14. The application stands disposed of along with all the pending application(s), if any.

15. Order be communicated to the concerned Jail Superintendent for necessary information and compliance.

16. Order be uploaded on the website of this Court, forthwith.

AMIT SHARMA, J SEPTEMBER 14, 2023/sn BAIL APPLN. 1163/2023 Page 11 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 19:31:52

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