Interim Order 1

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
Bail Application No.83/2024
State v. Mohd. Farukh Ansari
27.03.2024
Present: Sh. Balbir Singh, Additional Public Prosecutor for
State.
None for accused-applicant.
This is an application under section 439 of the Code of
Criminal Procedure,1973 moved on behalf of accused-applicant
Mohd. Farukh Ansari for grant of bail in case FIR No.
206/2023 registered at Police Station, Crime Branch under
Sections 15, 18 & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ('NDPS Act' in short) is fixed for orders.
2. Mr. Nitin Kumar, learned counsel appearing for the
accused has contended that accused has been falsely implicated
in the present case. The accused is in custody since 25.08.2023.
Accused-applicant is arrested on the disclosure statement of co-
accused. No recovery of contraband is effected from the accused-
applicant. There is only disclosure statement and CDR
connectivity against the accused which is not admissible in the
eyes of law. There is no money transaction between the accused-
applicant and co-accused. Merely because is involved previously
in another NDPS case, bail cannot be refused. Learned counsel
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has relied upon decision in Chand Mehra v. The State of NCT
of Delhi, Bail Appln. 4245/2021 decided on 10.02.2023,
Chinedu Patrick v. Narcotics Control Bureau, Bail Appln.
3494/2021 decided on 04.09.2023, Shyam Gupta & Ors. v.
State, Bail Appln. 421/2019 decided on 13.03.2023; Vinod
Nagar v. Narcotics Control Bureau, Bail Appln. 3149/2022;
Ansar Ahmed v. State (NCT of Delhi), Bail appln. 2667/2022
decided on 17.04.2023; Phunderimayum Yas Khan v. State
(NCT of Delhi), Bail Appln. 1383/2022 decided on 11.01.2023;
Dalip Singh v. The State (NCT of Delhi), Bail Appln.
1312/2018 decided on 14.01.2019; Babli v. State NCT of Delhi,
Bail Appln. 3528/2023 decided on 03.11.2023; Anita v. State of
NCT of Delhi, Bail Appln. 3653/2023 decided on 19.12.2023, all
by Hon'ble High Court of Delhi and Yash Jasyeshbhai
Champaklal Shah v. State of Gujarat, Misc. Application
No.1234/2022 decided by High Court of Gujarat on 02.03.2022.
3. Learned Additional Public Prosecutor has opposed the bail
application on the ground that 160.800 kgs of Doda Post (Afeem)
was recovered from two tempo bearing no. DL-1LU- 9784 and
DL-1LU-9094. Accused-applicant was arrested at the instance of
co-accused Pappu Kumar on 25.08.2023 during his police
custody remand. Half of the recovered contraband was to be
supplied to accused-applicant. Accused-applicant was in contact
with co-accused Pappu Kumar as per CDR details. Case pertains
to recovery of commercial quantity of Doda Post and rigors of
section 37 of the NDPS Act are not satisfied in the present case.
Another case FIR No.19/2020 under section 8/15 NDPS Act is
already registered against the accused in Uttar Pradesh.
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4. There are allegations of committing offences under section
15, 25 and 29 of the NDPS Act involving commercial quantity in
the present case. Section 37 of the NDPS Act which regulates the
grant of bail in cases involving offences under the NDPS Act,
reads as under:
"37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 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 2 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
sub-section (1) are in addition to the limitations under the Code
of Criminal Procedure, 1973 (2 of 1974), or any other law for the
time being in force on granting of bail."
5. Section 37 of the NDPS Act regulates the grant of bail in
cases involving offences under the NDPS Act. The twin
conditions specified in clause (b) of sub-section (1) of section 37
of the NDPS Act are required to be satisfied for granting bail in
case involving commercial quantity and cases punishable under
sections 19, 24 27A. The twin conditions are that if the Public
Prosecutor opposes the application, the Court may not grant bail
to accused unless it 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.
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6. Further, the limitations on granting of bail specified in said
clause (b) of sub-section (1) of section 37 of the NDPS Act are in
addition to the limitations under the CrPC.
7. In respect of twin conditions/limitations as enumerated in
section 37 of the NDPS Act, the limitations imposed under
section 439 of the CrPC and expression “reasonable grounds”,
the three-Judge Bench of Hon'ble supreme Court on 19.07.2022,
in case of Narcotics Control Bureau v. Mohit Aggarwal, 2022
Live Law (SC) 613 held as under:
11. It is evident from a plain reading of the non-obstante clause
inserted in sub-section (1) and the conditions imposed in sub-
section (2) of Section 37 that there are certain restrictions placed
on the power of the Court when granting bail to a person
accused of having committed an offence under the NDPS Act.
Not only are the limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973 to be kept in mind, the
restrictions placed under clause (b) of sub-section (1) of
Section 37 are also to be factored in. The conditions imposed
in subsection (1) of Section 37 is that (i) the Public
Prosecutor ought to be given an opportunity to oppose the
application moved by an accused person for release and (ii)
if such an application is opposed, then the Court must be
satisfied that there are reasonable grounds for believing that
the person accused is not guilty of such an offence.
Additionally, the Court must be satisfied that the accused
person is unlikely to commit any offence while on bail.
12. The expression “reasonable grounds” has come up for
discussion in several rulings of this Court. In “Collector of
Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC
549”, a decision rendered by a Three Judges Bench of this
Court, it has been held thus :-
“7. The limitations on granting of bail come in only when
the question of granting bail arises on merits. Apart from
the grant of opportunity to the Public Prosecutor, the
other twin conditions which really have relevance so far
as the present accused-respondent is concerned, are:
the satisfaction of the court that there are reasonable
grounds for believing that the accused is not guilty of
the alleged offence and that he is not likely to commit
any offence while on bail. The conditions are
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cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to
be based on reasonable grounds. The expression
“reasonable grounds” means something more than
prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not
guilty of the alleged offence. The reasonable belief
contemplated in the provision requires existence of
such facts and circumstances as are sufficient in
themselves to justify satisfaction that the accused is not
guilty of the alleged offence.”
[emphasis added]
13. The expression “reasonable ground” came up for
discussion in “State of Kerala and others Vs. Rajesh and
others, (2020) 12 SCC 122” and this Court has observed as
below:
“20. The expression ”reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision
requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence. In the
case on hand, the High Court seems to have completely
overlooked the underlying object of Section 37 that in
addition to the limitations provided under the CrPC, or
any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for.”
[emphasis added]
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
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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.”
(some emphasis added)
8. Himachal Pradesh High Court in case of Satish Singh v.
State of Himachal Pradesh, Cr.MP(M) No. 299 of 2020 decided
on 29th June, 2020 summarized the law relating to rigors of
section 37 of the NDPS Act:
“21. From the summary of the law relating to rigors of S.37 of
NDPS Act, while granting bail involving commercial quantities
in the NDPS Act, the following fundamental principles emerge:
a) The limitations on granting of bail come in only when the
question of granting bail arises on merits. [Customs, New
Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].
b) In case the Court proposes to grant bail, two conditions
are to be mandatorily satisfied in addition to the standard
requirements under the provisions of the CrPC or any other
enactment. [Union of India v. Niyazuddin & Anr, (2018) 13
SCC 738].
c) Apart from the grant opportunity to the Public
Prosecutor, the other twin conditions which really have
relevance are the Court's satisfaction that there are
reasonable grounds for believing that the accused is not
guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin,
(2008) 6 SCC 721].
d) The satisfaction contemplated regarding the accused
being not guilty has to be more than prima facie grounds,
considering substantial probable causes for believing and
justifying that the accused is not guilty of the alleged offence.
[Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC
549].
e) Twin conditions of S. 37 are cumulative and not
alternative. [Customs, New Delhi v. Ahmadalieva Nodira,
(2004) 3 SCC 549].
f) If the statements of the prosecution witnesses are believed,
then they would not result in a conviction. [ Babua v. State of
Orissa, (2001) 2 SCC 566].
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g) At this stage, it is neither necessary nor desirable to weigh
the evidence meticulously to arrive at a positive finding as to
whether or not the accused has committed an offence under
the NDPS Act and further that he is not likely to commit an
offence under the said Act while on bail. [Union of India v.
Rattan Mallik @ Habul, (2009) 2 SCC 624].
h) While considering the application for bail concerning
Section 37, the Court is not called upon to record a finding of
not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC
798].
i) In case of inconsistency, S. 37 of the NDPS Act prevails
over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal,
1991 (1) SCC 705].
j) Bail must be subject to stringent conditions. [Sujit Tiwari v.
State of Gujarat, 2020 SCC Online SC 84].”
9. Hence, the accused has to satisfy this Court the twin
conditions on the basis of reasonable grounds that firstly, he is
not guilty of the alleged offence and secondly, that he is not
likely to commit any offence while on bail. The said conditions
are cumulative and not alternative and therefore, said both the
conditions are to be satisfied as held three-Judge Bench of the
Hon'ble Supreme Court in cases of Mohit Aggarwal (supra) and
Collector of Customs, New Delhi (supra). In the present case
learned Additional Public Prosecutor has opposed the application
for bail of the applicant and therefore, for grant of bail, this Court
has to be satisfied that there are reasonable grounds for believing
that applicant is not guilty of such offence and that he is not
likely to commit any offence while on bail.
10. In the present case, first condition of giving opportunity to
the Learned Public Prosecutor has been complied with because
Learned Public Prosecutor has been heard on the bail application.
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11. In second condition, there are two parts, one is the
satisfaction of this Court that accused is not guilty of such
offence and other is the satisfaction of this Court that he not
likely to commit any offence while on bail. The first part of the
second condition is satisfied because the contraband was not
recovered admittedly from the possession or at the instance of the
accused-applicant. The allegations against the accused-applicant
are that he is connected with co-accused Pappu Kumar as per
CDR details. In this regard, judgment passed by Hon'ble
Supreme Court in case of State by (NCB) Bengaluru v.
Pallulabid Ahmad Arimutta & Anr., Special Leave to Appeal
(Crl.) No.242 of 2022, decided on 10.01.2022, can be referred,
wherein it has been held that the CDR details of some of the
accused or allegations of tampering of evidence on the part of
one of respondent is an aspect that will be examined at the stage
of trial. Further in Shyam Babu Saxena v. State (NCT of
Delhi), Bail Appln. 3452/2020 decided on 29.01.2021, Hon'ble
High Court of Delhi had granted bail to the accused whereas
there were 106 calls connectivity between him and co-accused.
On this aspect, Vinod Nagar v. Narcotics Control Bureau, Bail
Appln. 3149/2022 decided by Hon'ble High Court of Delhi on
19.02.2024 and Chand Mehra v. The State of NCT of Delhi,
Bail Appln. 4245/2021 decided by Hon'ble High Court of Delhi
on 10.02.2023, can also be referred. Further, in Amit Ranjan v.
State, Bail Appl. No.1189/2020, dated 23.05.2022 passed by
Hon’ble High Court of Delhi, Hon'ble High Court of Delhi
granted bail for the offences under Section 8 (c), 21 (c), 23 & 29
of the NDPS Act and observed as under:-
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“43. On a consideration of the submissions that have been
made on behalf of either side and the aspect that apart from the
voluntary statement of the applicant under Section 67 of the
NDPS Act, 1985 which he has retracted and statements made by
the co-accused also under Section 67 of the NDPS Act, 1985
which are stated to have been retracted all of which statements
whether retracted or not in terms of the verdict of the Hon ble	‟
Supreme Court in Tofan Singh's case are inadmissible in
evidence, in as much as, in terms of the verdict in Tofan Singh
(supra), the said statements are made to 'police officers' as the
officers vested with powers under Section 53 of the NDPS Act,
1985 are police officers in terms of Section 25 of the Indian
Evidence Act, 1872 and any confessional statement made to
them is barred in terms of Section 25 of the Indian Evidence Act,
1872 except to the extent of any other recovery having been
effected pursuant to that alleged disclosure statement.
44. In the instant case, the Narcotics Control Bureau has not
placed on record further incriminating evidence through the
initial complaint dated 12.02.2019 nor through the
supplementary complaint dated 08.01.2020 filed against the
applicant in relation to any recovery having been effected
pursuant to the stated voluntary statement made by the
applicant under Section 67 of the NDPS Act, 1985. CDRs
between the applicant and the co-accused persons per se at this
stage do not suffice to establish the existence of a conspiracy
between the applicant and the co-accused in illicit trafficking of
psychotropic substances nor is there any document placed on
the record by the Narcotics Control Bureau during the course of
consideration of the present bail application to bring forth the
transportation of any narcotic or psychotropic substance from
the applicant to the co- accused persons through K.K. Pharma
to Vinay Pharmaceuticals nor has the Narcotics Control Bureau
placed on record any document to show the connection of the
applicant with K.K. Pharma Solutions through whom allegedly
the psychotropic substances were sent to Vinay Pharmaceuticals
i.e. to the co-accused Manish Mohan. That there were monetary
transactions between the co-accused Pulkit Kumar and the
applicant, per se, also do not indicate that the said monetary
transaction was in relation to any illicit trafficking of narcotic
or psychotropic substances.”
12. In respect of disclosure statement of applicant-accused and
of co-accused against accused-applicant is concerned, same is not
admissible in view law laid down by Hon'ble Supreme Court in
case of Toofan Singh v. State of Tamil Nadu, CRL Appl.
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No.152/2013 decided on 29.10.2020, wherein it has been
observed as under:-
“155. We answer the reference by stating:
(i) That the officers who are invested with powers under
section 53 of the NDPS Act are “police officers” within
the meaning of section 25 of the Evidence Act, as a result
of which any confessional statement made to them would
be barred under the provisions of section 25 of the
Evidence Act, and cannot be taken into account in order
to convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67 of the
NDPS Act cannot be used as a confessional statement in
the trial of an offence under the NDPS Act.”
13. Insofar as, second part of the second condition is
concerned, same is not satisfied in the present case because
admittedly accused-applicant is involved in case FIR No.19/2020
PS Loni Border for offence under NDPS Act, as per reply of the
IO. As per this condition, this Court has to be satisfied that
accused is not likely to commit any offence while on bail. In the
present case, accused-applicant is admittedly involved in another
case of NDPS Act and therefore, this Court is not satisfied that
accused is not likely to commit any offence while on bail. Anita
(supra) relied upon by learned counsel for accused-applicant is
not applicable in the present case because Section 37 of the
NDPS Act was not attracted in the said case as quantity was
intermediate. Insofar as Babli (supra) which is also relied upon
by learned counsel for accused is concerned, in that case there is
no observation that accused is not likely to commit any offence
while on bail and further that Hon'ble High Court is having vide
powers including inherent powers under section 482 CrPC.
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14. Twin conditions of section 37 (1) (b) (ii) of the NDPS Act
are cumulative and not alternative as held by Hon'ble Apex Court
in Customs, New Delhi v. Ahmadalieva Nodira, 2004 (3) SCC
549. Therefore, it is mandatory for this Court to record its
satisfaction that accused-applicant is not guilty of such offence
and further that he shall not commit any offence while on bail.
More recently on July 28, 2023, Hon'ble Supreme Court in case
of Vernon v. State of Maharastra and Anr., 2023 INSC 655
observed qua section 37 of the NDPS Act as under:-
“40. We are returning these findings as the restrictions on the
Court while examining the question of bail under the 1967 Act is
less stringent in comparison to the provisions of Section 37 of the
Narcotic Drugs and Psychotropic Substances Act, 1985. We are
not called upon, for granting a bail to an accused with
commercial quantity of contraband article under the 1985 Act, to
satisfy ourselves that there are reasonable grounds for believing
that an accused is not guilty of such offence and that he is not
likely to commit any offence while on bail. Here, we have to
satisfy ourselves that the specified offences alleged to have been
committed by the appellants cannot be held to be prima facie
true.”
(emphasis added)
15. In respect of non-recording of satisfaction that accused is
not likely to commit an offence while on bail, judgment in Union
of India v. Ajay Kumar Singh @ Pappu, Criminal Appeal No.
of 2023 [Arising out of SLP (CRL.) No. 2351 of 2023], passed
by the Hon'ble Supreme Court on March 28, 2023, can be
referred wherein bail granted by the High Court was cancelled on
the ground that High Court did not record any finding that the
accused is not prima facie guilty of the offence alleged and that
he is not likely to commit the same offence when enlarged on bail
rather his antecedents are indicative that he is a regular offender.
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16. In view of the above discussion, this Court is of the view
that there is no reasonable grounds for believing that applicant-
accused is not likely to commit any offence while on bail because
he is previously involved in another case under NDPS Act.
Hence, second part of the second condition of section 37 (1) (b)
of NDPS Act is not satisfied. Hence I am not inclined to grant
8bail to the accused-applicant Mohd. Farukh Ansari. The
application is accordingly rejected.
17. It made clear that the observations made hereinabove are
only for deciding the present bail application and shall have no
bearing on the merits of the case.
18. Copy of order be given dasti to IO, learned counsel for
accused-applicant and be communicated to accused-applicant in
Jail also through Jail Superintendent.
(Sanjeev Kumar-II)
Special Judge (NDPS)-02
Central District, Tis Hazari Courts,
Delhi /27.03.2024
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