IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28.03.2024
Pronounced on: 20.05.2024

BAIL APPLN. 441/2024

YUNUS KHAN ….. Petitioner

Through: Mr. U.A. Khan and Mr. Shahrukh Khan and Mr. Tushar Upadhyaya, Advs.

versus

STATE NCT OF DELHI ….. Respondent

Through: Mr. Ritesh Kumar Bahri, APP for State with SI Virender Singh Narcotics Cell / ND
CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT

VIKAS MAHAJAN, J.

1.The present petition has been filed under Section 439 Cr.P.C. seeking regular bail in connection with FIR No. 680/2021 under Section 21 (c)/29 of the NDPS Act registered at PS Bhalswa Dairy, Delhi.

2.Vide order dated 27.02.2024, notice was issued in the present petition and the respondent/State was directed to file a status report. The State has filed a status report dated 27.02.2024, which forms part of the record.

3.The case of the prosecution as borne out from the status report is that on 21.09.2021 at about 10:30 AM, secret information was received that a person namely, Imran (co-accused) was indulging in sale and supply of heroin in Delhi after bringing the same from Bareilly, UP. On the basis of secret
information co-accused Imran was apprehended and 500 gms heroin was recovered from his possession.

4.During investigation, it was disclosed by the co-accused in his disclosure statement that the heroin was supplied to him by the petitioner. Thereafter, the petitioner was apprehended from his rented house and from his house 260 gms of heroin was recovered besides cash amounting to Rs. 26,40,000/-.

5.The learned counsel for the petitioner invites the attention of the Court to the disclosure statement of co-accused Imran to contend that in the said disclosure statement co-accused Imran has not given any details of the residential address of the petitioner nor any specific place was pointed out from where the recovery could be affected, therefore, it is not understandable as to how raid was conducted by the police on the alleged residential address of the petitioner.

6.He submits that despite prior information available with the police there is no departure or arrival entry in the DD Register insofar as the raid on the premises of the petitioner is concerned.

7.He further submits that no warrants of search were obtained by the empowered officers in terms of Section 41 (2) of the NDPS Act before searching the premises of the petitioner, nor any videography of the search was done.

8.He submits that despite prior information no notice under Section 50 of the NDPS Act was served upon the present petitioner.

9.He further contended that though the disclosure statement of co-accused Imran was in the form of an information available with the Police qua the present petitioner, the same was not forwarded to the higher official in terms of sub-section (2) of Section 42 of the NDPS Act. Thus, he submits that
there is no compliance of Section 42 of the NDPS Act.

10.He submits that co-accused Imran from whom heroin weighing 500 gms was recovered has already been granted bail by the Court of Additional Sessions Judge vide order dated 04.08.2023. He, therefore, claims parity with co-accused Imran.

11.It is also contended by the learned counsel that a sample of 5 gms of heroin was taken from the contraband allegedly recovered from the petitioner but when the said sample was weighed by the FSL, the same was found to be 4.7 gms, which shows the weighing machine of the investigating agency was
faulty and in case the entire quantity recovered is reduced in the same proportion, the same would come to 246 gms, which is less than the commercial quantity of 250 gms in case of heroin. In support of his contention reliance has been placed by the learned counsel on the decision of a co-ordinate bench of this Court in Soyab Vs. State NCT of Delhi [BAIL APPN. 2626/2022, date of decision 12.12.2022]

12.He further submits that the petitioner is in custody since 22.09.2021 which is approximately 2½ years. According to the learned counsel the prosecution has cited as many as 23 witnesses and till date only 02 witnesses have been examined, which according to him will lead to a protracted trial. He places reliance on the decision of the Supreme Court in Rabi Prakash vs. The State of Odisha, 2023 SCC OnLine SC 1109. Likewise reliance has also been placed on the two decisions of a coordinate bench of this Court in Rajesh Kumar Vs. State in BAIL APPLN. 2531/2022 dated 14.02.2024 and in Gurpreet Singh Vs. State of NCT of Delhi in BAIL APPLN. 857/2023 dated 05.02.2024.

13.In the backdrop of aforesaid factual matrix it is urged by the learned counsel to enlarge the petitioner on bail.

14.Per contra, the learned APP for the State has argued on the lines of status report. He submits that the present case is under the NDPS Act and pertains to commercial quantity, therefore, the negation of bail is the rule and grant of bail is an exception thereto. He submits that apart from the recovery made from the present petitioner there is recovery of 500 gms made from the co-accused and regard being had to the fact that Section 29 of the NDPS has been invoked, the quantity recovered from the two accused persons has to be clubbed for ascertaining whether the same is commercial quantity or not. It is also submitted that there is material to show conspiracy between them.

15.He further submits that the charges have already been framed by the learned Special Judge opining that the contraband is of commercial quantity. He submits that the said order has not been challenged by the petitioner at any stage and the same has attained finality.

16.Controverting the submissions of the learned counsel for the petitioner that the disclosure statement does not mention the address of the petitioner or the place from where the recovery could be made, the learned APP has handed over in Court “Pointing Out Memo” to contend that the premises of the petitioner wherefrom the contraband was recovered was pointed out by co-accused Imran and the said memo also bears the signatures of owner of the premises namely Rajesh, whose statement under Section 161 CrPC was also recorded.

17.He further submits that Section 50 of NDPS Act is not applicable to the
present case in as much as the recovery in the present case has not been made
from the person of the present petitioner, rather the recovery was made from
the premises of the petitioner.
18.

Insofar as compliance of Section 42 of NDPS Act is concerned, the
learned APP has drawn the attention of the Court to the entry of DD No. 3 to
contend that the said DD entry with reference to the secret information
specifically mentions the name of co-accused Imran as well as the present
petitioner. He submits that this information was forwarded to the ACP
(Operation) Sh. Richhpal. A copy of the DD entry so handed over in the
Court, is also taken on record.
19.

He further contends that the compliance of Section 42 of NDPS Act
insofar as present petitioner is concerned was not required on the basis of the
disclosure statement as the disclosure statement is not an information in terms
of Section 42 of the NDPS Act and the same is also hit by Section 25 and 26
of the Evidence Act.
20.

He further submits that even if there is irregularity in the search, the
same will not vitiate the proceedings. In support of this contention the
reliance has been placed on the decision of the Constitution Bench of the
Hon’ble Supreme Court in Pooran Mal Vs. Hanuman Pershad Ganeriwala,
AIR 1974 SC 348 and the State of H.P. Vs. Priti Chand, 1996 2 SCC 37.
21.

He submits that the petitioner is not entitled to bail on the ground of
parity, in as much as co-accused Imran was granted bail only due to the defect
in the notice under Section 50 of NDPS Act whereas the said requirement is
not applicable to the present petitioner. He further submits that the period of
incarceration in a case under the NDPS Act, where the twin conditions under
Section 37 of NDPS Act are applicable, is not relevant. In support of his
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By:NARENDRA SINGH
ASWAL
Signing Date:24.05.2024
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contention reliance has been placed on the decision of Hon’ble Supreme
Court in NCB Vs. Mohit Aggarwal, 2022 SCC OnLine SC 891.
22.

As regards the discrepancy in the weight in the sample, the submission
of the learned APP is that the same is a factual aspect and has to be seen by the
learned trial Court at the stage of trial. Even otherwise, the discrepancy is very
minor and does not affect the present case especially when recovery of 500
gms made from the co-accused Imran is to be added having regard to the
angle of conspiracy, which is writ large from the CDR records showing
connectivity between accused persons.
23.

He submits that the CDRs between the present petitioner and
co-accused Javed have also been placed on record alongwith the
supplementary chargesheet.
24.

Insofar as CDR is concerned, the learned counsel for the petitioner in
rejoinder submits that the said CDR are not pertaining to the present petitioner
and co-accused Imran. He submits that the CDR only shows that the present
petitioner was in touch with co-accused Javed, but no recovery has been made
from the co-accused Javed. He submits that in any case co-accused Javed was
granted anticipatory bail by this Court and he has joined the investigation.
25.

I have heard the learned counsel for the petitioner, as well as, the
learned APP for the State and have perused the material on record.
26.

The gravamen of allegations against the present petitioner is that he
was apprehended on the disclosure statement of co-accused namely, Imran
from whom 500 grams of heroin was recovered. Thereafter, acting on the
information of the co-accused, the premises of the petitioner was searched
and 260 grams of heroin was recovered. Thus, the total quantity of contraband
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recovered in the present case is 760 grams of heroin, which is commercial in
nature.
27.

It has been contended by the learned counsel for the petitioner that due
to discrepancy in weight of the representative sample, the quantity of total
contraband recovered from the premises of the petitioner has to
proportionately reduced and thus, calculated, the quantity recovered will only
be an intermediate quantity, thus, the rigours of Section 37 of the Act do not
have any application in the present case. This submission of the learned
counsel is premised on the notion that there cannot be any clubbing of
contraband recovered from the co-accused, Imran and the petitioner. In this
view of the matter, it is necessary to first ascertain whether the contraband
which has been recovered from Imran and the contraband recovered from the
petitioner can be clubbed or not. Reference in this regard may be had to the
judgment of this Court in Awadhesh Yadav v. State of NCT of Delhi,
2023:DHC : 8529 where after referring to various precedents on the aspect of
clubbing of quantities of contraband, it was held as under:
“49. From the provisions of law and the essence of case-laws,
as discussed above, following principles can be culled out
governing clubbing of the quantity of contraband recovered from
two or more co-accused, at the stage of bail:
i. invocation of offence of abetment and/or conspiracy
under Section 29 of the Act is must for clubbing of
quantity. However, there cannot be a straight jacket
formula for clubbing the quantity of contraband recovered
from all the accused, merely on the basis of invocation of
offence under Section 29 of the Act. It will depend on the
factual backdrop of each case and the incriminating
material available against the accused persons.

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ASWAL
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ii. the incriminating material relied upon to invoke the
offence of abetment and/or conspiracy under Section 29 of
the Act, has to be cogent and convincing against each one
of the accused charged with the offence of abetment and/or
conspiracy.
iii. in a case where joint recovery of contraband has been
effected from two or more co-accused, the recovered
contraband cannot be equally divided amongst the number
of accused to determine whether the quantity of
contraband recovered in “commercial quantity” or not.
iv. where accused persons are travelling together in the
same private vehicle individually carrying contraband, it
will not be proper to consider the alleged recovery to be an
individual recovery and the contraband recovered from all
persons can be clubbed.
v. if an accused is a habitual offender, it gives rise to an
inference that he knows the tricks of the trade. In such a
situation, previous involvement of the accused in the
case(s) under the NDPS Act, is an additional factor which
could be considered, besides other incriminating
circumstances, for adding the quantities of contraband
recovered from two or more co-accused.”
28.

Bearing the aforesaid principles in mind, the present case has to be
considered on its own facts. The prosecution has filed the chargesheet under
Section 21/25/29 of the NDPS Act, however, the Status report filed by the
prosecution is conspicuously silent on the incriminating material which links
the present petitioner with co-accused Imran. No material in the form of
CDR’s, CAF or financial transactions have been placed on the record of this
Court to prima facie record a satisfaction that co-accused and the petitioner
are in conspiracy with one another. In this backdrop, the recovery made from
co-accused Imran cannot be attributed to the petitioner herein.

Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:24.05.2024
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29.

The first contention of the learned counsel for the petitioner is that the
quantity of contraband attributed to the petitioner has to be proportionately
reduced in terms of the deficient weight cannot be accepted in view of the
judgment of this Court in Gita Lama Tamang v. State of (G.N.C.T.) of Delhi,
2007 (93) DRJ 813 the relevant part of which reads as under:
“26. The next submission made by the learned counsel for the
appellant was that there is a difference in weight of the samples.
Case of the prosecution is that sample weighing 5 grams was
taken. However, the CFSL report reveals that when it arrived
there, it weighed 3.29 grams.
27.
To my mind this argument does not turn the corner. There
can be many reasons as to why there was difference in weight.
In Gurdev Kaur v. State of Haryana, 2002 Crl.L.J. 3016 (P&H), it
was held:—
“No doubt, in the report of the Forensic Science
Laboratory, Madhuban, Ex. PMJ, the weight of the sample
of opium had been mentioned as 8.29 grams
approximately. This marginal difference in the weight as
such cannot be taken as the basis for a conclusion that
here had been tampering of the sample during the period
Constable Roshan Lal had taken the sample to deposit
the same with Forensic Science Laboratory,
Madhuban.”
(emphasis supplied)
30.

In the present case as well there is no material to support tampering of
sample.
31.

Reference in this regard may also be had to the judgment of a
co-ordinate bench of this Court in Kulwant Singh v. Narcotics Control
Bureau, 2010 CRL 248/1997 decided on 18.01.2008, the relevant paragraph
of which reads thus:
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“21. A plea has been taken by the appellant that weight of
sample, as found by forensic laboratory was 4.6 gm and not 5
gm. The discrepancy in the weight of the sample as found in the
test laboratory is no ground to doubt the case of the prosecution.
Anybody having a little knowledge of science and the scientific
instruments knows that every scientific instrument has a least
count. The accuracy of a scientific balance is much more than
the ordinary balance used by a I.O and there may be a variation
of weight plus or minus depending upon the least count of the
scientific balance. The atomic balances are more accurate than
scientific balance. Such balances are used in more sensitive
laboratories and are accurate to .0001 gm and even more
accurate. An Investigating Officer, who draws sample for testing,
need not have a balance of a high accuracy in order to draw the
samples. He can draw sample weighing approximately 05 gm
using ordinary balance. If the same sample is weighed at an
accurate scientific balance used in CRCL, the weight of each
sample is bound to differ. The difference in weights of samples
rather shows the genuineness of the case. If the case had been a
made up or a false case, the IO might have used more accurate
balance and weighed the samples with accuracy. One may have
doubt on the genuineness of the case if the each sample weigh
the same on accurate balance used in CRCL, but one cannot
doubt if the weight difference is found as in this case. Such
difference in weight is natural. No malafide can be drawn by the
appellant by this difference of weight. Thus the weight difference
in the sample cannot be considered as a ground for acquittal.”
(emphasis supplied)
32.

Similarly, a Learned Single Judge of the Allahabad High Court in
Chhotey Lal v. Union of India, CRL Misc Bail App No. 6298/2020 has held
as under:
“16. Minor discrepancy in the weight of the sample sent at
the Forensic Laboratory cannot shake the roots of the
prosecution case.”
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ASWAL
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33.

This Court has also gone through the judgment of a co-ordinate bench
of this Court in Soyab (supra), wherein this Court noted that in the order of
the learned MM passed under Section 52A of the Act it was recorded that the
representative sample weighed 5 grams but the FSL reported the sample to be
4.08 grams. In that case, the quantity of the sample seemed to be under the
significant cloud as the weight of the sample was found to be deficient by 0.92
grams, whereas, in the present case, the sample has been found to be deficient
by 0.30 grams. This minor discrepancy could even be attributed to the
presence of moisture content in the contraband when the sample was taken,
however, that is an aspect which will be considered during the trial. At this
stage suffice it to say that no material has been pointed out which suggests the
tampering of sample. This being the position, no benefit of minor deficiency
in weight of the sample when weighted by the FSL, will enure to the benefit
of the petitioner while considering the present bail application.
34.

Thus, from the aforesaid discussion, it is luminous that the rigours of
Section 37 of the NDPS Act are applicable in the present case and only when
the petitioner can satisfy that there are reasonable grounds for believing that
he is not guilty can he be released on bail pending trial.
35.

The next contention of the learned counsel for the petitioner is that
despite prior information, no notice under Section 50 of the NDPS Act was
served on the petitioner. This contention of the learned counsel is not
sustainable as it is no more res integra that the provisions of Section 50 are
applicable only when recovery has been effected from the person of the
accused and not from the premises of the accused as in the present case.
36.

Considerable arguments were also made by the learned counsel on the
aspect that there is non-compliance of Section 42(2) of the Act as the
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ASWAL
Signing Date:24.05.2024
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information qua the petitioner was not forwarded to the higher officials. A
perusal of daily dairy entry DD No. 3 shows that secret information was
recorded and forwarded to the ACP (Operations), Sh. Richhpal and the said
information contains the name of the petitioner besides co-accused Imran.
Therefore, the argument of the learned counsel is not tenable. In any case, this
aspect cannot be appreciated at the stage of bail and has to be considered by
the learned Trial Court at the stage of trial. Reference in this regard may be
had to the judgment of the Supreme Court in Union of India v. Md. Nawaz
Khan: (2021) 10 SCC 100 the relevant part of which reads as under:
“33. In the complaint that was filed on 16-10-2019 it is alleged
that at about 1400 hours on 26-3-2019, information was received
that between 1500-1700 hours on the same day, the three accused
persons would be reaching Uttar Pradesh. The complaint states
that the information was immediately reduced to writing.
Therefore, the contention that Section 42 of the NDPS Act was
not complied with is prima facie misplaced. The question is one
that should be raised in the course of the trial.”
(emphasis supplied)
37.

Similarly, the effect of non-obtaining of warrants of search under
Section 41(2) of the NDPS Act before effecting recovery from the premises of
the petitioner is a consideration which will be appreciated by the learned Trial
Court. Further, it is a trite principle of law that the case of the prosecution
cannot be wholly negated on the ground that the contraband is recovered
pursuant to an illegal search. Reference in this regard may be had to the
judgment of the Supreme Court in State of H.P. v. Pirthi Chand (supra), the
relevant paragraph of which reads:
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5. It would be seen that the organised traffic in contraband
generates deleterious effect on the national economy affecting
the vitals of the economic life of the community. It is settled law
that illegality committed in investigation does not render the
evidence obtained during that investigation inadmissible. In
spite of illegal search property seized, on the basis of said search,
it still would form basis for further investigation and prosecution
against the accused. The manner in which the contraband is
discovered may affect the factum of discovery but if the factum
of discovery is otherwise proved then the manner becomes
immaterial.
6. In Radha Kishan v. State of U.P. [AIR 1963 SC 822 : (1963) 2
LLJ 667] this Court held that the evidence obtained by illegal
search and seizure would not be rejected but requires to be
examined carefully. In State of Maharashtra v. Natwarlal
Damodardas Soni [(1980) 4 SCC 669 : 1981 SCC (Cri) 98 : AIR
1980 SC 593] , even if the search was illegal, it will not affect the
validity of the seizure and further investigation of the authorities
or the validity of the trial which followed on the complaint by the
customs officials. In Shyam Lal Sharma v. State of M.P. [(1972) 1
SCC 764 : 1972 SCC (Cri) 470 : AIR 1972 SC 886] it was held
that even if the search and seizure is illegal being in contravention
of Section 165, that provision does not have any effect in its
application to the subsequent steps taken in the investigation.
In State of Kerala v. Alasserry Mohd. [(1978) 2 SCC 386 : 1978
SCC (Cri) 198 : AIR 1978 SC 933] this Court had held that failure
to comply strictly with the statutory provisions by the Food
Inspector would not vitiate the trial and conviction of the accused.
7. It would thus be settled law that every deviation from the
details of the procedure prescribed for search does not
necessarily lead to the conclusion that search by the police
renders the recovery of the articles pursuant to the illegal search
irrelevant evidence nor the discovery of the fact inadmissible at
the trial. Weight to be attached to such evidence depends on facts
and circumstances in each case. The court is required to scan
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the evidence with care and to act upon it when it is proved and
the court would hold that the evidence would be relied upon.”
(emphasis supplied)
38.

There is also force in the contention of the learned APP for the State
that the petitioner cannot claim parity with co-accused Imran as he was
enlarged on bail considering that contraband was recovered from his person
and there was a defect in the notice under Section 50 of the NDPS Act.
However, in the case of petitioner, the recovery has been effected from his
house and in such a scenario, the provisions of Section 50 of the Act are not
applicable.
39.

Further, the petitioner cannot be granted the concession of bail solely
on the basis of period of incarceration in view of the dictum of the Hon’ble
Supreme Court in NCB Vs. Mohit Aggarwal (supra), the relevant paragraph
of which reads as under:
“18. In our opinion the narrow parameters of bail available under
Section 37 of the Act, have not been satisfied in the facts of the
instant case. At this stage, it is not safe to conclude that the
respondent has successfully demonstrated that there are
reasonable grounds to believe that he is not guilty of the offence
alleged against him, for him to have been admitted to bail. The
length of the period of his custody or the fact that the
charge-sheet has been filed and the trial has commenced are by
themselves not considerations that can be treated as persuasive
grounds for granting relief to the respondent under Section 37
of the NDPS Act”
(emphasis supplied)
40.

In view of the aforesaid discussion, at this stage it cannot be said that
there are reasonable grounds for believing that the petitioner is not guilty of
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the offence alleged. Accordingly, the present petition, along with pending
applications, if any, is dismissed.
41.

It is made clear that the observations made herein are only for the
purpose of considering the bail application and the same shall not be deemed
to be an expression of opinion on the merits of the case.
42.

The petition stands disposed of.

43.

Order dasti under the signatures of the Court Master.

44.

Order be uploaded on the website of this Court.

VIKAS MAHAJAN, J
MAY 20, 2024/N.S. ASWAL
Signature Not Verified
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By:NARENDRA SINGH
ASWAL
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