Avdhesh v. The State (Nct of Delhi)

TALWANT SINGH, J AUGUST 26, 2022 nk

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 26.08.2022 + BAIL APPLN. 1295/2022 AVDHESH ..... Petitioner Through: Ms. Sushma Sharma, Mr. Girish Kumar Sharma, Mr. Karan Verma and Ms. Aaushi Gaur, Advocates. versus THE STATE (NCT OF DELHI) ..... Respondent Through: Mr. N.S. Bajwa, APP for State. SI Manish Kumar, PS Crime Branch. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. This is a regular bail application under Section 439 read with Section 482 Cr.P.C. on behalf of the petitioner in FIR No. 39/2020 under Sections 15/25/29 NDPS Act, PS Crime Branch. It has been submitted that the applicant was arrested on 28.11.2020 after he surrendered before the Court after the dismissal of his anticipatory bail application by this Court and since then he is in judicial custody. 1.2. The facts regarding the case of the prosecution are that on the receipt of secret information against one Omkar resident of Alipur, a raiding team was constituted and co-accused Omkar was apprehended near a godown at Leezeram Colony, where he was found moving with a plastic katta (bag) outside the godown. Total 13 kattas were recovered, which contained 16 kg Poppy straw in each one of them. 22 other katas were recovered from inside the godown which contained poppy straw weighing 16 kg. each. In total, 560 kg. poppy straw was recovered. 1.3. As per the prosecution, the said contraband was received by Omkar from the present petitioner and Omkar had transferred certain payments in the bank account of the wife of the present petitioner. The bail application filed by the present petitioner was dismissed on 02.04.2022 by the learned Trial Court, so the present bail application has been moved on the grounds that no contraband was recovered from the present applicant/accused; disclosure statement was given by the main accused Omkar against the present applicant/accused, which is not admissible as there is no supporting evidence; search, seizure and arrest were made by a non-authorised officer, rendering the trial to be vitiated; there is no compliance of Section 42 of the NDPS Act; there is no evidence on record to prove the involvement of the present applicant/accused; Section 37 of NDPS Act is not attracted; the charges are yet to be framed; 24 witnesses are to be examined and speedy justice is fundamental right. Under these circumstances, the petitioner has prayed for bail in the above mentioned case. 2. Notice was issued. Status Report has been filed. Nominal roll has been summoned from Jail. The said nominal roll shows that as on 02.07.2021, the petitioner has undergone 1 year, 7 months and 5 days incarceration. In the Status Report, the facts regarding receipt of secret information, constitution of raiding team, apprehension of Omkar and recovery of 560 kg poppy straw from him have been reiterated. 2.1. It has been mentioned that case FIR No. 39/2020, under Sections 15/25 NDPS Act was registered in this regard. The said Omkar made a disclosure statement that he was supplied poppy straw by one Avdesh@ Sagar, resident of Aurangabad, Bihar, who is the present petitioner. Omkar also provided mobile number of Avdesh. The Customer Application Form (CAF) of the said mobile number was obtained, which was having the photograph of the present petitioner. Investigation revealed that accused Omkar and the present applicant/petitioner were in regular touch with each other through mobile phones and there were 191 calls between them between 01.12.2019 to 03.02.2020. 2.2. As per the prosecution, accused Omkar had transferred money to the bank account of the wife of the present petitioner as the cost of buying poppy straw. The transfer of Rs. 73,000/- was sought to be established on the basis of evidence on record. The charge-sheet stands filed on 15.07.2020. Since the present petitioner did not appear, so non-bailable warrants were issued and process under Section 82 Cr.P.C. was initiated. The petitioner surrendered in Court on 28.11.2020 and w