Order 15

Order Details: COPY OF ORDER
Pdf Text: Pages No. 1/8
Regular Bail Application
STATE Vs. Mohd. Zahid
FIR NO. 65/2023
PS Crime Branch
U/s 21/25/29 NDPS Act & 77 JJ Act
10.02.2026
Present: Sh. Ranbir Singh Kundu, Ld. Special PP for State.
Sh. Deepak Ghai, Ld. counsel for the applicant/
accused.
Deputed IO ASI Om Prakash in person.
Reply to the bail application is already filed. Copy
already supplied.
Arguments heard.
Ld. counsel for the applicant/ accused submits that
the applicant/ accused has been falsely implicated in this case
and the case property is planted upon him.
He further argues that as per the case of prosecution,
the first information was received by Ct. Ravi Kumar but the said
secret information was not reduced in writing by Ct. Ravi
Kumar. He further argues that though, it is not admitted but it
may be presumed that Ct. Ravi Kumar had produced the secret
informer before SI Vishan but said SI Vishan also did not reduce
the secret information in writing.
He has pointed out that GD no. 51A though referred
as information U/s 42 of NDPS Act, through telephone but
according to him, it cannot be considered compliance of Section
42 of NDPS Act. According to him, the said GD entry is having
information i.e. reaching at the spot, receiving secret information
and thereafter subsequent discussion with Inspector and ACP
concerned. Therefore, according to him, the Investigating
Agency did not comply Section 42 of NDPS Act in letter and
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spirit.
In support of his submissions, he has relied upon
Rajaram Kadu Vs. The State of Maharashtra, Bail Appln No.
2108/16, decided on 13.06.2017; Gulab Rai @ Chetan Vs. State
(NCT of Delhi), Bail Appln. 3840/23, decided on 19.01.2024;
Bantu Vs. State Govt. of NCT of Delhi, Bail Appln. 2287/22,
decided on 08.07.2024; Mohit Bhati Vs. State (NCT of Delhi),
Bail Appln. 1853/24, decided on 01.08.2024; Zakey Ahmed Vs.
State of NCT of Delhi & Anr., Bail Appln. 817/25, decided on
17.07.2025 & Yashmin Vs. State (NCT of Delhi), Bail Appln
886/24 decided on 27.08.2024.
He further argues that during investigation, case
property was allegedly produced before Ld. MM for sampling of
case property. According to him, the person with whom the case
property was deposited by IO, was supposed to prepare an
inventory of the recovered substance and he was supposed to
produce said inventory before Ld. MM during proceedings U/s
52A of NDPS Act but no such inventory has been produced
before Ld. MM.
He further argues that as per the case of prosecution,
initially, case property was produced before SHO concerned and
thereafter, it was deposited with MHC(M) on 13.03.2023 and
thereafter, case property was allegedly sent to Ld. concerned MM
for proceedings U/s 52A of NDPS Act on 22.03.2023.
According to him, the Investigating Agency has filed copy of
relevant page of register kept by MHC(M) and pointed out that
there is no entry to the effect that the case property was ever sent
to the Court for proceedings U/s 52A of NDPS Act on
22.03.2023.
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Thus, according to him, case property was never
deposited by IO as well as SHO concerned with MHC(M) and it
remained in the possession of IO. Hence, according to him, the
authenticity of case property has been compromised.
He further argues that after apprehension, accused/
applicant was interrogated and his disclosure statement was
recorded and he allegedly disclosed that there is some more
Heroin at his house. He further argues that there are two houses
of applicant/ accused. According to him, thereafter, IO had sent
ASI Sunil to ACP concerned to seek search warrants. According
to him, till ASI Sunil left the place, the Investigating Agency has
not mentioned about the address where the proposed drug was to
be found but the ACP concerned has exactly mentioned the
address where the further Heroin was recovered.
According to him, police had firstly visited the
house of the applicant/ accused and thereafter, they allegedly
recovered substance and it is only thereafter, ASI Sunil was sent
to seek search warrants.
He further argues that admittedly, there were public
persons at the spot but police has not joined any public witness
during alleged recovery. He further argues that police officials
were having mobile phones but no videgraphy or photography
was done.
He further argues that the applicant/ accused is in JC
from last about two years, ten months and 28 days. He further
argues that the investigation is already complete and charge-sheet
is already filed but the charge is yet to be framed.
In view of abovesaid, he requests that the applicant/
accused may be admitted to bail.
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Per contra, Ld. Special PP for the State as well as IO
(by way of reply) have opposed the bail application of the
applicant/ accused stating that initially, 500 gram Heroin was
recovered from the possession of the applicant/ accused and
thereafter, additionally, 4.500 Kg. Heroin alongwith raw material
was recovered from the house of accused/ applicant at his
instance. Thus, according to them, commercial quantity of
Heroin was recovered and applicant/ accused is Expert in
preparing the Heroin.
They further submit that due to aforesaid fact,
Section 37 of NDPS Act is applicable and the applicant/ accused
has to satisfy the twin conditions as provided U/s 37 NDPS Act
and according to them, applicant/ accused has failed to discharge
the said onus.
They further submit that Section 42 of NDPS Act
does not anywhere say that the person, who receives the secret
information only is supposed to reduce the said information in
writing. Thus, according to them, Section 42 of NDPS Act has
been complied in letter and spirit.
They further submit that Section 52A of NDPS Act
is also complied. They further submit that in
NCB Vs. Kashif,
Crl. Appeal No. 5544/2024, decided on 20.12.2024, the Hon’ble
Supreme Court of India has held to the effect that the procedural
lacunae during investigation does not entitled the accused to be
admitted to bail specifically in cases where commercial quantity
of contraband has been recovered. Though, lacunae as addressed
are not admitted.
They further submit that in the aforesaid judgment,
the Hon’ble Apex court has further observed that the Court has to
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keep in mind the aim and object of NDPS and Court has to give
finding prima facie to the effect that the accused has not
committed the offence and there is no likelihood of his
committing the offence if he is admitted to bail.
They further submit that at the relevant time, the
Investigating Agency was not supposed to do videography or
photography of the recovery. Therefore, they request that the bail
application should be dismissed.
In rebuttal, Ld. counsel for applicant/ accused
submits that the applicant/ accused is not involved in any other
case and the Investigating Agency has not complied the statutory
provisions, which are supposed to be complied by the
Investigating Agency.
Submissions considered. Record perused.
It is the contention of Ld. counsel for the applicant/
accused that the Investigating Agency has not complied Section
42 of NDPS Act.
On perusal of judicial file, it is observed that as per
the case of prosecution, on 12.03.2023, on the direction of Insp.
Rakesh Duhan, SI Vishan alongwith ASI Sunil Kumar and Ct.
Ravi Kumar went within the jurisdiction of North, North-East,
Delhi to gather information about drug peddler. At about 7 PM,
Ct. Ravi Kumar received secret information to the effect that
applicant/ accused i.e. Zahid aged about 30 to 35 years R/o Vijay
Park, Maujpur, Delhi, who used to supply Heroin in Delhi in
retail as well as in whole sale, would come today i.e. on
12.03.2023 between 8 pm to 8:30 PM from Signature Bridge,
Majnu Ka Tila and if raid is conducted, he can be apprehended.
Ct. Ravi Kumar informed the secret information to SI Vishan and
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SI Vishan satisfied himself at about 7:15 PM and informed Insp.
Rakesh Duhan through phone and at about 7:30 PM, Insp.
Rakesh Duhan informed SI Vishan that he has informed ACP
Arvind Kumar and ACP has directed to constitute a raiding team
under the supervision of SI Vishan and to conduct a raid.
Thereafter, at about 7:35 PM, SI Vishan shared the secret
information with HC Sanwar Mal, who recorded the information
U/s 42 of NDPS Act.
As per the prosecution, the aforesaid compliance did
vide GD No. 51A is the compliance of Section 42 NDPS Act.
Ld. counsel for the applicant/ accused has relied
upon
Gulab Rai @ Chetan Vs. State (NCT of Delhi)(supra) &
Rajaram Kadu Vs. The State of Maharashtra (supra) and argued
that the prosecution has not complied the provision of Section 42
of NDPS Act.
On perusal of judgment
Gulab Rai @ Chetan Vs.
State (NCT of Delhi)(supra), it is observed that in that case,
secret information was received by HC Amit, who further
transferred the secret information to SI Vikasdeep and SI
Vikasdeep transferred the information to Insp. Rakesh Duhan and
Insp. Rakesh Duhan further transferred the secret information to
ACP Naresh Kumar and thereafter, Insp. Rakesh Duhan reduced
the said secret information in writing. In the said judgment, the
Hon’ble High Court of Delhi held that the Investigating Agency
did not comply Section 42 of NDPS Act and thereafter allowed
the bail application of the accused in the said case.
The facts of the present case falls squarely within the
ambit of aforesaid judgment as the person i.e. Ct. Ravi Kumar,
who firstly received the secret information did not reduce the
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same in writing but it has been reduced in writing by HC Sanwar
Mal.
The Hon’ble High Court of Delhias well as Hon’ble
Apex Court has observed in various judgments that the said
lacuna can be considered by the Courts during the bail
application. Further, in the considered opinion of this Court,
lacuna identified by the Ld. counsel for applicant/ accused goes
to the root of the matter.
Therefore, considering the aforesaid lacuna as well
as arguments addressed by Ld. counsel for applicant/ accused as
well as the mandate given by the Hon’ble High Court of Delhi in
Gulab Rai @ Chetan Vs. State (NCT of Delhi)(supra), he has
prima facie succeeded to cast doubt on the case of the
prosecution and prima facie satisfied the twin conditions as
provided U/s 37 of NDPS Act. In the overall facts and
circumstances of the case, bail application of the applicant/
accused is allowed and applicant/ accused Mohd. Zahid is
admitted to bail on furnishing personal bond in the sum of Rs.
50,000/- with one surety in the like amount and subject to
condition that :-
(i) That applicant/ accused shall not, directly or indirectly, make
any inducement, threat or promise to the complainant or any
person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to any police officer;
(ii) That applicant/ accused shall upon his release provide his
mobile number to the IO/ SHO and keep his such mobile 'Switch
On' at all times.
(iii)That applicant/ accused shall intimate to the IO/ SHO about
any change in his mobile number or address;
(iv) The applicant/ accused will not influence the witnesses nor
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tamper with any evidence;
(v) That applicant/ accused shall not leave the country without
permission of the Court;
(vi) That applicant/ accused shall appear on each and every date
of hearing before the Court.
Application stands disposed of accordingly.
The observations made on the merits of the case are
purely for the purposes of deciding the present bail application
and shall not be construed as expression upon the merits of the
case.
Copy of the order be given dasti to the IO as well as
to the Ld. Counsel for applicant/ accused and be communicated
to the applicant/ accused through Jail Superintendent for
information.
(Virender Singh)
Special Judge, NDPS,
Central,THC, Delhi/10.02.2026
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