IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.05.2024

BAIL APPLN. 1390/2024

ANUJ ….. Petitioner

Through: Mr. S.N. Qureshi and Mr. N.S. Bhati, Advocates.

versus

STATE OF NCT OF DELHI ….. Respondent

Through: Mr.Manoj Pant, APP for the State with Mr. Saurabh Das, Mr.Paramveer, Mr.Lalit Kumar and Mr.Ashok Kumar Shukla, Advocates along with SI Suresh Kumar, P.S. New Usmanpur.

CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA JUDGMENT
SWARANA KANTA SHARMA, J. (ORAL)

1.The present application under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of the applicant seeking grant of regular bail in case arising out of FIR bearing No. 760/2021, registered at Police Station New Usmanpur, for offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

2.Brief facts of the case are that, on 17.10.2021, police officials were patrolling in the area of P.S.: New Usmanpur, Delhi. At about 02:15 AM, the police officials had reached near Budh Bazar Road, Arvind Nagar, Delhi, where they had seen one black-colored car bearing No. UP 80 CC 7027, wherein three persons were sitting. When the Police had reached near the said vehicle, the driver had started the vehicle, raising suspicion. Thereafter, the driver and other persons sitting in the car, were apprehended by the police officials and during interrogation, they had disclosed their names as Furkan Ahmed, Anuj Kumar and Shakil Ahmad. Since these persons were not able to give any satisfactory reply regarding their presence at the spot, their car was searched by the police officials. Upon carrying out the search, police officials had found two white plastic bags in the boot of the car. One plastic bag contained 08 yellow-colored packets and another bag contained 07 yellow-colored packets. One of these packets was checked and was found to contain ganja. Thereafter, intimation was given to the concerned SHO regarding recovery of the substance and intimation was also given to ACP, Seelampur, who was then called at the spot. Notices were prepared under Section 50 of the NDPS Act, and were served upon the accused persons. The recovered plastic bags were weighed on electronic weighing machine and their total weight was found to be 31.084 kgs. The Police officials had sealed the packets containing ganja and had prepared tahrir under Section 20 of the NDPS Act. After complying with all other provisions of the Act, the three accused persons were arrested.

3.Learned counsel for the present accused/applicant argues that the applicant has been falsely implicated in the present case, and in this regard, he draws the attention of this Court to several
discrepancies in the DD entries when the information regarding the apprehension of the accused persons and seizure of narcotic substance were made. It is also argued that there are discrepancies in
the colour of the bag in which the narcotic substance was allegedly recovered from the accused persons when the Seizure Memo was prepared, and when learned Magistrate had conducted the
proceedings under Section 52A of NDPS Act. Therefore, it is submitted that the recovery is itself doubtful. It is further argued that there is every likelihood of the applicant being acquitted and,
therefore, he be granted regular bail.

4.Learned APP for the State, on the other hand, submits that the applicant was arrested from the spot and the vehicle from which the narcotic substance was recovered is also registered in the name of the
present applicant. It is stated that WhatsApp chat between the coaccused persons and their locations also support the prosecution’s case. It is further pointed out that FSL report also confirms that the recovered contraband in this case was ganja, and therefore, the present bail application be dismissed.

5.This Court has heard arguments on behalf of learned counsel appearing on behalf of the applicant and learned APP appearing on behalf of the State and has perused the material placed on record.

6.In the present case, a perusal of the record reveals that the police officials had apprehended the accused persons at about 02:15 AM on 17.10.2021 and upon searching their car, 31.084 kgs of
narcotic substance i.e. ganja had been recovered from the boot of the car. Therefore, at the outset, it is to be noted that the recovery in this case is of commercial quantity of narcotic substance and therefore, bar under Section 37 of the NDPS Act will have to be considered while adjudicating the present bail application.

7.As far as law of Section 37 is concerned, it will be apt to refer to the following observations of Hon’ble Apex Court in Narcotics Control Bureau v. Mohit Aggarwal 2022 SCC OnLine SC 891: “…10. The provisions of Section 37 of the NDPS Act read as follows:

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

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

(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 subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.] ****

14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances
must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the
availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”
(emphasis supplied)

8.Having gone through the records of the case, this Court notes that the vehicle from which the contraband was allegedly recovered was owned by and registered in the name of present accused/
applicant, who is a resident of Agra, and in this regard, the copy of registration certificate has been procured by the investigating agency. Furthermore, while analyzing the mobile phone of the present
applicant, the police had found photographs of ganja as well as multiple bills of supply of ganja. A photograph of ganja sent by coaccused Shakil to the applicant Anuj, was also found in the WhatsApp chat between the said accused persons. The mobile phone location chart of the present applicant also reveals that on the date of his arrest, he had travelled from Agra to New Delhi, and had joined the co-accused persons. The CDR of the accused persons has already been placed on record before the learned Trial Court.

9.As regards the argument regarding recovery in this case being doubtful, a perusal of the charge-sheet prima facie reveals that all the necessary provisions under NDPS Act were complied with by the
police officials such as sending information to the concerned SHO as well as ACP, serving notice under Section 50, preparation of seizure memo for the purpose of Section 55, sampling before the learned
Magistrate for the purpose of Section 52A, etc.

10.The FSL report in this case confirms that the substance, recovered from the vehicle of the present applicant, was ganja. Charge in this case has already been framed under Section 20(c) of
NDPS Act and the case is at the stage of examination of prosecution witnesses.

11.Considering the overall facts and circumstances of the case and for the reasons recorded hereinabove, this Court is not inclined to grant bail to the present accused/ applicant.

12.Accordingly, the present bail application stands dismissed.

13.It is however clarified that, nothing expressed hereinabove shall tantamount to an expression of opinion on merits of the case.

14.The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J MAY 06, 2024/at Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.05.2024 13:12:49 BAIL APPLN. 1390/2024 Page 6 of 6