Devraj vs Narcotics Control Bureau

Vivek Singh Thakur, J

Petitioner has preferred this petition, under Section 439 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), seeking regular bail in case Crime No. 66 of 2019, dated 7.11.2019 registered under Sections 8, 20, 25, 28, 29 and 60 of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ‘NDPS Act’) in Police Station Narcotics Control Bureau, Chandigarh, District Chandigarh.

Prosecution case, as evident from copy of complaint filed with petition, is that on 7.11.2019, a specific information was received by Rajan Singh Bisht, Surveillance Assistant NCB through reliable source with respect to trafficking of charas and opium, which was reduced into writing by him and put up before Superintendent NCB Chandigarh at 01.05 PM, whereupon Superintendent NCB had instructed to constitute a team to take further necessary action as per law.

As per information, two persons, namely Kuldeep and Hardeep, both resident of Mani Majra Chandigarh, were engaged in charas and opium trafficking and they had been transporting a huge consignment of charas and opium on that day, received from petitioner Dev Raj, resident of Banjar to deliver it to one Karamvir @ Landa resident of Pinjore (petitioner) by using Mahindra Pickup vehicle bearing No. HP-12J-4403 and they were likely to reach at Toll Barrier Baddi between 4 PM to 5 PM.

It is the case of prosecution that on 7.11.2019 at about 2.45 PM, the team constituted by Superintendent NCB reached at Toll Barrier Baddi Himachal Pradesh and contacted Police Station Baddi with request to provide two independent witnesses. Further that despite best of efforts made by the team, no one from the local public had agreed to witness the search and seizure proceedings, but, at about 3.45 PM, two police officials namely Akram Khan and Shiv Kumar Constables, posted in Police Station Baddi, had approached the scene. NCB Team was introduced to both of them by Investigating Officer and they were made aware of secret information. Both of them were requested, in writing, to witness the search and seizure proceedings for which they agreed.

According to prosecution, at about 4.45 PM Mahindra Pickup, matching with secret information, reached the Toll Barrier which was stopped and person sitting at driver’s seat, on inquiry had introduced him as Kuldeep son of Gafur, resident of Mani Majra and person sitting besides him had disclosed his name as Hardeep Kumar son of Harish Kumar. They were taken to nearby barrier of Excise and Taxation Office and Investigating Officer had introduced himself and his team members including independent witnesses to them by showing Identity Cards and also about the secret information received by him with respect to trafficking of charas and opium by both of them and therefore, expressed the intention to search the vehicle Mahindra Pickup van.

It is further case of prosecution that during search of pickup van, at first instance, nothing was recovered. However, on stern inquiry, both of them had confessed that they had concealed the charas and opium in a special cavity made at backside of pickup, below the registration number plate whereupon pickup van was again searched and both of them had removed the number plate and had taken out 10 silver colored packets and informed that one of those packets was containing opium, while other nine were containing charas.

Recovered contraband was weighed and seized by following the procedure provided under NDPS Act and total recovered charas was found 8 Kg. 750 grams and recovered opium was found 1.020 Kg.

As per reply filed on behalf of respondent, name of petitioner came in investigation during statement of co-accused persons recorded under Section 67 of the NDPS Act, wherein they have disclosed the name of petitioner and his mobile number, on the basis of which CDR of Mobile Phone number was obtained and noticed was issued to the petitioner. Thereafter in July 2020, statement of petitioner was recorded under Section 67 of the NDPS Act wherein petitioner disclosed his role in trafficking of seized contraband, whereafter he was arrested on 3.7.2020. Further that CDR available on file depict that the petitioner was well in connection with other elements of drug trafficking syndicate.

It has been submitted on behalf of prosecution that during investigation petitioner and other co-accused made voluntary statement, under Section 67 of the NDPS Act, disclosing their involvement to the Investigating Officer and before making such statement petitioner and other co-accused were explained about their right that they were not bound to give any statement and they were at liberty to remain silent, and any statement, being given by them, could be used against them or anybody else as evidence in the Court. According to prosecution, in their statements, all accused, including petitioner, have accepted their guilt and role in the procurement and trafficking of the seized contraband.

It is case of prosecution that during investigation, call detail reports (CDRs) of mobile phones of trio were also obtained and it was found that mobile numbers 78075 -30188, 62303-49337, 88940-41593 were being controlled by Karamvir petitioner, whereas mobile numbers 86278-86848 and 86278-67931 were being controlled by Kuldeep and petitioner Dev Raj respectively. Analysis of CDRs of these numbers had established the link between petitioner Karamvir (receiver), carrier Kuldeep and Hardeep, and supplier petitioner Dev Raj.

It has also been contended on behalf of the prosecution that petitioner, earlier also, was found involved in commission of offence under Section 20 of the NDPS Act, in FIR No.271 of 1998, registered in Police Station Banjar, District Kullu, Himachal Pradesh and, therefore, it has been contended that petitioner is a habitual offender and is not entitled for bail.

Petitioner had filed bail application before Special Judge, Nalagarh, which was dismissed on 12.11.2020, on the ground that the petitioner was an habitual offender.

Petitioner had also approached this Court by filing Cr.MP(M) No.2077 of 2020, which was dismissed on 7.1.2021, keeping in view the nature of criminal conspiracy and participation in the crime as well as sufficient calls between the petitioner and the main accused from their Mobile Phones.

Petitioner, vide order dated 2.9.2022, passed in Cr.MP(M) No.672 of 2022, was enlarged on temporary bail for 30 days for treatment of his brother. After expiry of temporary bail period he had surrendered before the Jail Superintendent of concerned Jail.

Learned counsel for the petitioner has submitted that petitioner, after availing interim bail, has surrendered before the concerned Jail Superintendent on the date fixed by the Court and he did neither jump over the bail nor flouted any condition imposed at the time of grant of interim bail.

It has been submitted by the learned counsel for the petitioner that petitioner is behind the bars since July 2020 and till date, out of 14 witnesses, no witness has been examined and case was fixed in the Trial Court recently, on 16.5.2023, when no witness was present and now case has been fixed for recording of evidence on 26.8.2023.

It has been further submitted that at the time of earlier bail application Cr.MP(M) No.2077 of 2020, plea of the petitioner to enlarge him on bail was rejected on the ground that there were sufficient call details between the petitioner and main accused on Mobile Phones, indicating conspiracy and participation of the petitioner in the commission of crime.

It has also been submitted that now the Supreme Court of India in Special Leave to Appeal (Crl.) No.242 of 2022, tilted as State by (NCB) Bengaluru v. Pallulabid Ahamad Arimutta & another, has upheld the bail granted by Karnataka High Court to a person similarly situated as the petitioner in present case, who was arrested by the NCB on the basis of statement under Section 67 of the NDPS Act and CDRs and, therefore, in view of this verdict of the Supreme Court, petitioner, in similar circumstances, is also entitled for bail, as no contraband has been recovered from the possession of petitioner and he has not been found travelling in the vehicle.

It has been further submitted that recovery of weighing machine from the house of petitioner cannot be termed as a link between the main accused and the petitioner for transporting the contraband in reference as such weighing machines are everywhere available in the market and they are kept by the families for domestic affairs.

Learned counsel for the petitioner has placed reliance on paragraphs 9 and 10 of the above referred pronouncement of the Supreme Court in Lallulabid Ahamad Arimutta’s case, which read as under:-

“9. Having gone through the records alongwith the tabulated statement of the respondents submitted on behalf of the petitioner-NCB and on carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, tha no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations leveled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) NO.1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.

It has been held in clear terms in Tofan Singh Vs. State of Tamal Nadu, (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/ voluntary statements of the respondents or the co-accused under Section 67 of the NDSP Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th January, 2020,

19 th December, 2019 and 20th January, 2020 pased in SLP (Crl.) No@ Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No.1465/2021, SLP (Crl.) No.1773-74/2021 and SLP (Crl.) No.2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.”

Mr. Pathak, learned Senior Advocate, has submitted that in view of pronouncement of Supreme Court, dated 19. 7.2022, in Narcotics Control Bureau vs. Mohit Aggarwal, petitioner is not entitled for bail, whereas learned counsel for the petitioner has submitted that in Mohit Agarwal’s case, in furtherance to disclosure, thee was recovery of contraband, whereas in present case there is no such recovery of contraband.

It has been further submitted that registration of FIR in the year 1998 cannot be made basis for rejection of bail application of the petitioner, particularly in view of pronouncement of the Supreme Court referred supra. It has been submitted that co-accused Karamvir has already been enlarged on bail by this Court vide order dated 9.12.2022, passed in Cr.MP(M) No.1477 of 2022 after considering pronouncement of the Supreme Court referred supra.

Learned counsel for the petitioner has submitted that the petitioner is ready to furnish personal bond and surety of relative to the satisfaction of the Court, for assuring his presence during trial and the petitioner undertakes to abide by any other condition(s) imposed by Court for enlarging him on bail.

Learned Arguing Counsel Mr. Ashwani Pathak, Senior Advocate, has submitted that weighing machine/scale recovered from the house of petitioner can be used for no other purpose except weighing the contraband at home for its distribution to customers or drug paddlers and, therefore, apart from statement under Section 67 of the NDPS Act and CDR record, there is additional material on record, disentitling the petitioner from enlarging him on bail. He has further submitted that in present case huge quantity of contraband has been recovered from the co-accused who were transporting it at the instance of the petitioner. There was specific information that recovered contraband was being transported by Kuldeep and Hardeep after receiving it from petitioner and, therefore, Call Details Record between him and Karamvir is sufficient to establish his involvement in the commission of crime.

Learned counsel for the petitioner has submitted that there is nothing on record even to indicate, muchless establish, that recovered contraband was being transported at the instance of the petitioner and, therefore, only for Call Details Record, petitioner can be incarcerated during pendency of the trial, as his involvement is yet to be proved by the prosecution in accordance with law and only thereafter it can be concluded that petitioner was involved in commission of offence or not and, therefore, at this stage, petitioner is entitled for bail.

Learned counsel for the petitioner has further submitted that the petitioner undertakes to abide by any condition, which may be imposed by the Court, in case of his release on bail, including furnishing of local surety for assuring his presence during trial.

Taking into consideration the entire facts and circumstances, but, without commenting on merits of the rival contentions of the parties, and taking into account factors and parameters, as propounded by the Courts, including Supreme Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case, at this stage.

Accordingly, the petition is allowed and the petitioner is ordered to be released on bail, on his furnishing personal bond in the sum of `2,00,000/- with two sureties, one of which shall of relative, as undertaken by the petitioner, in the like amount to the satisfaction of Trial Court, upon such further conditions as may be deemed fit and proper by the Trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioners/ accused at the time of trial:

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required, as per law;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) the petitioner shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.

The parties are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

Petition stands disposed of in the aforesaid terms.