Birpal vs N.C.B

,,,,

Suresh Kumar Kait, J",,,,

Present petition has been filed under section 439 Cr.P.C. read with section 37 of NDPS Act for grant of bail.,,,,

The brief facts as per prosecution are that the officers of NCB, on the basis of secret information, on 19.01.2019, reached house No. 671, Sen",,,,

Mohalla, Mahipalpur Bypass Road, New Delhi i.e. the office of Apex courier. On questioning by the officers of NCB, the manager of Apex courier",,,,

informed with regard to receipt of a parcel containing medicines (5000 tablets each of Alprazolem and zolpidem) from Agra on the same day and the,,,,

said courier was collected by one Mr. Lallan, pickup boy of M/s S.M. Courier who was sent by the petitioner Birpal.",,,,

Learned counsel for the petitioner submitted that during interrogation, the name of petitioner was surfaced and arrested by the officers of NCB and",,,,

a statement under section 67 of NDPS Act was taken forcibly under torture and inducement from the petitioner. However, said confessional",,,,

statement was retracted by petitioner at the first available opportunity.,,,,

Further submitted that it is also case of the prosecution that no parcel containing any medicine or psychotropic substance was ever recovered either,,,,

from the possession of the petitioner or at his instance. Moreover, neither any cash amount has been recovered from the petitioner nor any money",,,,

transactions is on record and therefore, there is no iota of evidence against the petitioner in the present case to connect with the alleged recovery of",,,,

the contraband. Thus, the embargo of section 37 is not attracted in the present case as nothing was recovered either from his possession or at his",,,,

instance.,,,,

Further submitted that in addition to above alleged seizures were made at Apex Courier, Delhi and it is an admitted fact that the petitioner was not",,,,

present at the site where alleged raid and seizure was effected on 19.01.2019. Moreover, the petitioner neither had booked the said consignment nor",,,,

he was recipient of the alleged consignment. Moreover, according to prosecution, the said parcel was meant for co-accused Mohan Kumar and the",,,,

same was sent by Dr. Brij Bhushan Bansal, another co-accused in the present case, and the applicant has no role whatsoever with regard to the said",,,,

consignment/seizure.,,,,

Also submitted that the petitioner as an employee of Mohan Kumar was duty bound to act as per directions of his master, during his employment,",,,,

he had no knowledge whatsoever with regard to any act, if done by him. As per the charge sheet and panchnama, the alleged parcel which was",,,,

allegedly sent from Agra, was seized by the officers of NCB from M/S Apex Courier, Delhi. Whereas, the consignment slip marked as Annexure 5",,,,

on page 70 of the Charge-sheet, shows the address of the Apex Courier Company, Delhi and thus, the same proves that it was never generated at",,,,

Agra and was fabricated and manipulated after 19.01.2019 at Delhi by the officers of NCB to implicate the present accused person. From the record,",,,,

it cannot be established as to how the petitioner is said to be connected with the consignment in question. There is no material to connect the petitioner,,,,

with the said offence and mere statement of co-accused even under section 67 is not sufficient to prima-facie show the involvement of the petitioner,,,,

and there is no evidence to connect the petitioner with the offence. Moreover, this Court was pleased to release the alleged main accused i.e. Mr.",,,,

Mohan Kumar on bail vide order dated 23.03.2020 and the role of the petitioner is having less gravity than that of the said accused. Thus, petitioner",,,,

deserves to be released on bail even on parity.,,,,

Learned counsel further submitted that following points are very important to prove the innocence of the petitioner:,,,,

a. It is admitted fact that the petitioner was an employee of co-accused.,,,,

b. It is also admitted by the prosecution that the petitioner had sent Lallan to collect the parcel in question on behalf of co-accused Mohan Kumar and,,,,

her sister-in-law Sandhya Sharma (the prosecution has knowingly and intentionally did not arrest Ms. Sandhya Sharma for reasons best known to,,,,

them. When she was a director and actively participating in the business carried on by M/s S.M. Courier and Cargo Pvt. Ltd.). However, the",,,,

petitioner had no role either in sending Lallan to collect any parcel from Apex Courier or he has no knowledge whatsoever qua any parcel sent to,,,,

Apex Courier from Agra.,,,,

c. According to the statement of Ms. Sandhya Sharma, director of M/S S.M. Courier and Cargo Pvt. Ltd. recorded u/s 67 of NDPS act, she and her",,,,

brother-in-law i.e. Mr. Mohan Kumar were personally looking after the affairs of M/s S.M. Courier and Cargo Pvt. Ltd. She had also stated in the,,,,

said statement that the petitioner was working as billing manager, and looking after accounts and operation. She had also stated that the petitioner was",,,,

doing the job under the supervision of herself and her brother in law i.e. Mr. Mohan Kumar. She had also admitted with regard to her knowledge of,,,,

sending of Lallan, the pick boy to apex Courier to collect the prohibited medicines containing 50,000 Zolpidem and 5000 Alprazolam which were sent",,,,

by one Dr. Brij Bhusan Bansal, Agra. She had also admitted in her statement that many clients of her company were asking about medicines.",,,,

d. According to statement of Mr. Mohan Kumar, director of M/s S.M. Courier Pvt Ltd. recorded u/s 67 of NDPS Act, the petitioner was one of the",,,,

employees of his company looking after the work of pickups, company daily affair management and operational procedures. He had also inter-alia",,,,

admitted with respect to his acquaintance with the other co-accused Dr.Brij Bhusan Bansal to whom he had met earlier at Agra and at other places.,,,,

He had also admitted that he had received a message qua forwarding medicines namely, Alprax, K25 Phentermine, etc. Also admitted that he had",,,,

received many queries on consignments which are required to be forwarded to foreign countries and persons keep coming to office and ask queries,,,,

about medicines and products are checked at office and then packed and forwarded. From the statements, it is clear that the parcels were received by",,,,

his company and after checking those were sent to foreign countries. When the consignment was allegedly sent by co-accused Dr. Brij Bhusan,,,,

Bansal under the instructions of Mohan Kumar, then where is the role of the petitioner when he was neither the consignor nor the consignee or the",,,,

beneficiary of any transaction done between co-accused Brij Bhusan Bansal and Mohan Kumar.,,,,

Lastly submitted that from the above, it is clear that the petitioner has no role whatsoever with regard to the smuggling of drugs in question and the",,,,

entire transaction was, if any, done between the co-accused Mohan Kumar and Dr. Brij Bhusan Bansal. Thus, the role of the petitioner cannot be",,,,

more serious than the role of co-accused Mohan Kumar who was released on bail by this Court by any stretch of imagination.,,,,

On the other hand, learned counsel for the respondent submitted that the contention of the petitioner that he was not in conscious possession of the",,,,

drugs recovered and entitled to get bail on the ground of parity, whereas the role of petitioner and co-accused Mohan Kumar are not identical in its",,,,

nature and from the relied upon documents, the petitioner was on the fore-front of the commission of the offence and a major link for commission of",,,,

the offences of present case. As per the case of the prosecution, petitioner is involved in the abatement/criminal conspiracy of the seized psychotropic",,,,

substance/ contraband in this case. The role of the particular person to be looked into to determine the commission of any offence and as such the,,,,

plea that he was in employment, has no significance in law and advantage to the petitioner. It is relevant to note that petitioner admits that he played",,,,

the role in trafficking of narcotics drug and psychotropic substances which is also apparent from the print outs of whatsapp of the mobile phone with,,,,

the petitioner meaning thereby the role of petitioner was direct in illicit trafficking of narcotics drug and psychotropic substances as per definition of,,,,

S.NO.,"DISTRIBUTOR

NAME, ADDRES

EMAIL, LICENC

NO.","BILL NO.

S,

E",BATCH NO.,"QUANTITY

SUPPLIED

1.,"M/s. J.P. MEDICA

AGENCIES 2

SANT SINGH SUR

MARKET

FOUNTAIN

AGRA282003

G O W D U NF -50,

SITE C

INDUSTRIAL

AREA, SIKANDR

AGRA -7 (U.P.) DL

NO. 51GR/20B/201

& 51 AGR/21B/2011

NEW LICENSE N

AGA-

2016/20B/00046,

AGA-

2016/21B/00046,

VALID UPTO

19.10.2021.","LJD/0591/12 DATE

52,1.12.2018 &

JID/0604/12 DATE

31.12.2018

A

.

1

O.","JDT-3692 12/2018

11/2021","2240 BOX

715 BOX

2.,"M/s. J.P. MEDICA

AGENCIES 2

SANT SINGH SUR

MARKET

FOUNTAIN

AGRA282003

G O W D U NF -50,

SITE C

INDUSTRIAL

AREA, SIKANDR

AGRA -7 (U.P.) DL

NO. 51GR/20B/201

& 51 AGR/21B/2011

NEW LICENSE N

AGA-

2016/20B/00046,

AGA-

2016/21B/00046,

VALID UPTO

19.10.2021.","LJD/0604/12 DATE

53,1.12.2018 &

JID/0620/01 DATE

09.01.2019

A

.

1

O.","JDT-3693 12/2018

11/2021","240 BOX

2014 BOX