Suraj v. State Govt. of NCT of Delhi

Judgment reserved on : Judgment pronounced on: PPLN. 2881/2022 .... versus GOVT. OF NCT OF DELHI ..... R o appeared in this case: ner : Mr. Aditya Aggarwal, M Panwar & Ms. Pooja Ro ndent : Mr. Yudhvir Singh Chau with ASI Neerja Kumar Branch. R. JUSTICE TUSHAR RAO GEDELA JUDGMENT

AO GEDELA, J. ing has been conducted through Hybrid a bail application filed under Section 439 r bail in respect of FIR No.311/2019 dat s 20/29 Narcotic Drugs and Psychotrop short "NDPS Act") registered at Police EW DELHI

21.08.2023

29.08.2023 . Petitioner Respondent Mr. Naveen oy, Advocates. uhan, APP r, PS Crime A d mode ] 9 Cr.P.C., 1973 ted 16.10.2019 pic Substances Station Crime

¶2Mr. Adi applicant subm

16.10.2019 und custody since (approx.) of inc

¶3Learned that on 16.10.2 coming to Del (Co-accused in near bus stop, V

¶4On appr accused person therefore, a not the accused. It i was recovered the bag, two h were containing with the field te

¶5Learned prosecution tha were 5 kgs. eac two packets wa also the admitte itya Aggarwal, learned counsel appe mits at the outset that the applicant wa der Section 29 of NDPS Act and has be then and has spent almost 3 years a carceration. counsel submits that it is the case of th 2019, the applicant namely Suraj S/o. hi to supply charas to a person, namel n the subject FIR) between 10:30 A.M. Vande Mataram Marg, Dhaula Kuan Road rehending the petitioner and co-accused ns refused their search in front of ga tice under section 50 of NDPS Act was is further the case of the prosecution that from the hands of the petitioner where heavy packets were found and on check g wet black colour pungent material whic esting kit was found to be Charas. counsel further submits that it is further at on weighing the two packets, the weig ch and the total weight of the blue bag as 10 kgs. Learned counsel vehemently su ed case of the prosecution that two sampl earing for the as arrested on een in judicial and 8 months he prosecution Chhering was ly, Priyaranjan to 11:00 A.M. d, Delhi. d, both of the azetted officer served to both t a blue zip bag ein on opening king, the bags ch on checking the case of the ght of the bags containing the ubmits that it is les of 25 grams each from both taken. Thereaft chargesheet w investigation.

¶6Learned story of the pro be near bus stan informer has a assuming that t of the co-accus Delhi-110001 w applicant. Lear presence of the

¶7Learned present bail app Priyaranjan Sha this Court in B versus State of alleged recover relevant facts o the co-accused

¶8On the a Article 21 of C h the packets along with their duplicate ter the petitioner and co-accused were ar was filed before the learned Trial Co counsel for applicant submits that even i osecution, at 10:47 A.M., the applicant's nd, Dhaula Kuan, Vande Mantaram Marg already identified him at 10:40 A.M. the co-accused was nearby to the applican sed was NDMC Complaint Center, Cliv which is roughly around 4.7 Km from t rned Counsel submits that there is a do Applicant at the place of seizure. d counsel for the applicant also seeks plication on the grounds of parity since t arma has already been released on bail vi BAIL APPLN. 3649/2022 titled as Priyar f NCT Delhi, as also emphasizes that a ry of contraband from the present applic of the case are actually pretty much the s Priyaranjan was granted bail by this Cou aforesaid basis, learned counsel bases hi Constitution of India to submit that libert samples were rrested and the ourt after the if going by the s location must g, as the secret and even by nt, the location ve Square New the location of oubt about the s the grant of the co-accused de the order of ranjan Sharma apart from the cant, the other same on which urt. s argument on ty as enshrined in the Constitut be released on r

¶9Per Cont clear and major sense that, it is 10 kgs., was se there has been Sharma.

¶10Learned Charas which of Section 37 o that keeping in both the applic the fact that the

¶11Learned State dated 07 submit that the being made ac contraband in constant touch. records and the phone of the ap been actively i tion is fundamental and thus, requests tha regular bail. tra, Mr. Yudhvir Singh Chauhan submits r distinction with the case of Priyaranjan s undisputed that the contraband, i.e., Ch eized from the present applicant namely no recovery effected from the co-accus APP further submits that it is beyond was seized, was of commercial quantity of NDPS Act would be squarely applicab n mind the fact that this is a commercia cants were apprehended at the spot, lend e complicity of the applicant cannot be ru APP also refers to the status report file

7.12.2022 particularly to paragraphs 6, e mobile phone seized from the applica cross the other mobile phone numbers w different times were seized and that . Learned APP points out to paras menti e number of calls made across to and fro pplicant are indicated to submit that the n touch with the other accused persons at the applicant s that there is a Sharma in the haras weighing Suraj whereas ed Priyaranjan cavil that the and the rigors ble. He submits al quantity and ds credence to led out. d on behalf of 7 and 12 to nt shows calls wherefrom the they were in ioning the call om the mobile e applicant has and therefore, the complicity cannot be ruled

¶12Learned to rebut the the on the grounds being different apprehended o according to th mobile towers apprehension is therefore, such scientifically. M a subject matter

¶13Learned certifying that view of the ma deserve to be re OPINION & D

¶14This Cou counsel for the and considered

¶15The issu reason that th and culpability of the applicant in the d out. APP further refers to para 12 of the said eory so raised by the learned counsel for s of applicant's location on the date of from the alleged place from where the n the basis of the location of the cellp he learned APP, the aerial distance bet s is around 1000-1200 meters and s surrounded by ridge area having vario h theory of applicant can be debunked Moreover, learned APP submits that this i r of trial. APP also relies upon the FSL repo the recovered contraband was indeed C atter, learned APP submits that the appl eleased on bail. DECISION OF THE COURT: urt has heard the arguments of Mr. Agg applicant and Mr. Chauhan, learned AP the submissions and the records so place e in the present case lies in a narrow co he co-accused of the applicant, namely e present case d Status Report r the applicant, f apprehension applicant was phone. In that, tween the said the place of ous towers and outrightly and issue would be ort chemically Charas. In that licant does not garwal, learned PP for the State ed. ompass for the y, Priyaranjan Sharma, has alr

16.08.2023 pa Priyaranjan Sh Priyaranjan, th contraband to applicant.

¶16This cou NCT of Delhi

26.07.2023 and Court in Rabi P 4169/2023 ren State (NCT o

28.03.2023, as Mondal @ Bis Nos. 450/2023 in Article 21 o section 37 of t has been incar doubt that the L across board, h judgments of th nature. The r extracted hereu ready been enlarged on regular bail vide t ssed by this Court BAIL APPLN. 364 harma vs. State of NCT Delhi. Though, ere was no recovery at all, whereas, it the extent of 10 kgs was recovered fro urt had also, in the case of Praveen Sain i in Bail Application No. 2321 of 202 d after considering the ratio laid down by Prakash vs. The State of Odisha in SLP dered on 13.07.2023, Mohd Muslim @ of Delhi) in SLP No. Crl. 915/2023 s also judgment of the Supreme Cour swajit Mandal vs. The State of West B rendered on 14.02.2023 held that the lib of the Constitution would whittle down the NDPS Act, 1985, particularly where rcerated for a fairly long period. Thoug Legislature intended the provisions to be s however, the liberty of an individual, in he Supreme Court have been held to be relevant paragraphs of Praveen Saini under: the order dated 49/2022 titled in the case of is alleged that om the present ni vs. State of 22, passed on y the Supreme P (Crl.) No.(s). @ Hussain vs. rendered on rt in Biswajit Bengal, Crl. A. berty enshrined the rigours of e the applicant gh, there is no strictly applied n the aforesaid e paramount in i (supra) are "32. Ke Court g Constitu conditio Court d on reg enumera

¶33This of the Su Rabi P 4169/20

¶4As re the NDP been du So far whether petition stage w years i militate guarant situation embarg Mohd M 943/202 A plain Section is not effective punitive well. T conditio within reasona record accused complet such as eeping in view the ratio of the judgments of the S giving primacy to the provisions of Article 21 ution of India and considering relaxation of ons contained in Section 37 of the NDPS Act, 19 does not find any reason to deny enlarging the a ular bail on stringent conditions, which s ated subsequently. s Court is fortified in its aforesaid view in the ju upreme Court as under :- Prakash vs. The State of Odisha (SLP (Crl.) 023 rendered on 13.07.2023 :- egard to the twin conditions contained in Sectio PS Act, learned counsel for the respondent – S uly heard. Thus, the 1st condition stands compli as the 2nd condition re: formation of opinio r there are reasonable grounds to believe er is not guilty, the same may not be formed when he has already spent more than three an in custody. The prolonged incarceration, g s against the most precious fundamenta teed under Article 21 of the Constitution and in n, the conditional liberty must override the s o created under Section 37(1)(b)(ii)of the NDPS Muslim @ Hussain vs. State (NCT of Delhi) (Cr 23 rendered on 28.03.2023 :- n and literal interpretation of the condition 37 (i.e., that Court should be satisfied that the guilty and would not commit any offence) ely exclude grant of bail altogether, resu e detention and unsanctioned preventive deten Therefore, the only manner in which such ons as enacted under Section 37 can be con constitutional parameters is where the c ably satisfied on a prima facie look at the mat (whenever the bail application is made) t d is not guilty. Any other interpretation, would te denial of the bail to a person accused of s those enacted under Section 37 of the NDPS Supreme 1 of the the twin 985, this applicant shall be dgments ) No(s). on 37 of State has ied with. on as to that the d at this d a half generally al right n such a statutory S Act. rl.A. No. ns under accused ) would lting in ntion as special nsidered court is terial on that the result in offences Act. 20. The sta court w reasona judgmen satisfac accused reasona examina held in ground Section which i Satende the cou appellan would b conditio interest; wrecked overcro appallin to Parl recorde prisoner 4,25,069 convicts Biswajit Bengal The app under S undergo begun a of drug but of sentence circums of the c terms an andard to be considered therefore, is one, wh would look at the material in a broad mann ably see whether the accused's guilt may be prov nts of this court have, therefore, emphasized tion which courts are expected to record, i.e., d may not be guilty, is only prima facie, bas able reading, which does not call for me ation of the materials collected during investiga Union of India v. Rattan Malik 19). Grant of of undue delay in trial, cannot be said to be fet 37 of the Act, given the imperative of Sectio s applicable to offences under the NDPS Act er Kumar Antil supra). Having regard to these urt is of the opinion that in the facts of this c nt deserves to be enlarged on bail. 21. Before pa be important to reflect that laws which impose s ons for grant of bail, may be necessary in ; yet, if trials are not concluded in time, the d on the individual is immeasurable. Ja owded and their living conditions, more often th ng. According to the Union Home Ministry's r liament, the National Crime Records Bure ed that as on 31st December 2021, over 5 rs were lodged in jails against total capa 9 lakhs in the country 20. Of these 122,85 s; the rest 4,27,165 were under trials. t Mondal @ Biswajit Mandal vs. The State (Crl. A. No. 450/2023) rendered on 14.02.2023 pellant seeks enlargement on bail in FIR No.3 Sections 21(c)/29 of the NDPS Act. The appel one a sentence of about 1½ years. The trial and no other criminal antecedents qua the afore g use. The material detected is the medicine C 10 litres. Taking in to consideration the pe e undergone by the appellant and all the a stances but without expressing any views on th case, we are inclined to grant bail to the appe nd conditions to the satisfaction of the trial cour here the ner, and ved. The that the that the ed on a eticulous ation (as f bail on ttered by on 436A too (ref. e factors case, the arting, it stringent n public injustice ails are han not, response eau had 5,54,034 acity of 52 were of West :- 303/2021 lant has has just esaid act Codenine eriod of attending he merits ellant on rt."

¶17It is man that the applica (approx.) in ju regular bail by Rabi Prakash (

¶18Though t the stage of exa would take som and thus, the lib reasonable caus

¶19Moreove no such materi indicate that t similar offence The words "re mean, prima fa appreciation by reach a definit Court in Moh judgment in thi "21. The s court wou reasonably judgments satisfactio nifest from the perusal of the Nominal R ant has already spent 03 years 08 month udicial custody and is thus entitled to b virtue of the ratio laid down by the Sup (supra) and Mohd Muslim (supra). the FIR was registered on 16.10.2019, the amination of prosecution witnesses and it me time for the prosecution evidence to berty of an individual cannot be restraine se. er, the applicant has no other previous inv ial has been placed on record by the r the applicant, if released, would invol es or that there indeed exists a reasonable easonable reading" have already been acie, examination of the material available y the Court and not material which need te conclusion. This has been held so by hd. Muslim (supra). The relevant para is context are extracted hereunder: standard to be considered therefore, is one, w uld look at the material in a broad mann y see whether the accused's guilt may be prov s of this court have, therefore, emphasized on which courts are expected to record, i.e., Roll on record hs and 10 days be released on preme Court in e trial is still at t appears that it o be concluded ed without any volvement and respondents to lve himself in e apprehension. interpreted to e on record for ds the Court to y the Supreme as of the said here the ner, and ved. The that the that the accused m reasonable examinatio held in U ground of Section 37 is applicab Kumar An the opinio be enlarge

¶22Before which imp necessary time, th immeasura

¶20Thus, ke Court in Mohd no material pl applicant, if re also clear fro ascertainable m absence whereo

¶21Therefor regular bail upo surety of the lik subject to the fo may not be guilty, is only prima facie, base e reading, which does not call for me on of the materials collected during investiga Union of India v. Rattan Malik19). Grant of f undue delay in trial, cannot be said to be fet 7 of the Act, given the imperative of Section 436 ble to offences under the NDPS Act too (ref. S ntil supra). Having regard to these factors the co n that in the facts of this case, the appellant des ed on bail. e parting, it would be important to reflect th pose stringent conditions for grant of bail, in public interest; yet, if trials are not concl he injustice wrecked on the individ able............" eeping in view the ratio laid down by d. Muslim (supra), prima facie and as of laced on record by the respondent to eleased, may involve himself in similar m the aforesaid that there has to b material for the Court to reach any such co of cannot be read against the individual. re, the applicant is entitled to be and on furnishing a personal bond of Rs.2,00, ke amount to the satisfaction of the learne ollowing conditions:- ed on a eticulous ation (as bail on ttered by 6A which Satender ourt is of serves to hat laws may be luded in dual is y the Supreme f now, there is show that the offences. It is be tangible or onclusion. The is released on 000/- with one ed Trial Court, a. He concerne without p b. He Court as c. He concerne operation d. He location Station; e. He nature wh f. He threat or case or t whatsoev g. In number, Officer/ C

¶22Any infr applicant liable e shall surrender his passport, if any, ed and shall under no circumstances prior permission of the Court concerned; e shall cooperate in the trial and shall app and when required; e shall provide his mobile number(s) to t ed Police Station and keep it on hi nal at all times; e shall drop a PIN on the Google map to is available to the SHO/IO of the con e shall not indulge in any criminal ac hatsoever. e shall not directly or indirectly make an promise to any person acquainted with t tamper with the evidence of the case, i ver ; and case of change of residential address the same shall be intimated to the Court concerned by way of an affidavit. raction of the abovesaid conditions sh e for revocation of the present bail so gran to the Court s leave Delhi pear before the the SHO/IO of s person and ensure that his ncerned Police ctivity of any ny inducement, the facts of the in any manner and/or mobile Investigating hall make the nted.

¶23Nothing opinion on the m

¶24With th disposed of. AUGUST 29, 2 rl in this Order shall be construed as an merits of the pending matter. e aforesaid conditions, the bail appl TUSHAR RAO 2023 expression of ication stands

GEDELA, J.

* IN THE % + BAIL AP SURAJ STATE G Advocates who For the Petition For the Respon CORAM: HON'BLE MR TUSHAR RA [ The proceedi 1. This is a seeking regular under Sections Act, 1985 (for Branch. E HIGH COURT OF DELHI AT NE