Order 5

Order Details: COPY OF ORDER
Pdf Text: State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 1/7
Regular Bail Application
State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
U/s 21/25/29 NDPS Act
11.03.2025
O R D E R :
1. This order of mine shall dispose of the regular bail
application U/s 439 Cr.P.C. filed on behalf of accused/ applicant
Javed Ali @ Chhotu.
2. Arguments have already been heard on the
application U/s 439 Cr.P.C. seeking grant of regular bail to the
applicant/ accused Javed Ali @ Chhotu. Record perused.
3. Learned counsel for applicant/ accused submitted
that the applicant/ accused was arrested in the present case on
23.04.2024 and that there is total non-compliance of Section 42
NDPS Act in the present case which entitles the applicant/
accused for grant of bail. Ld. counsel further submitted that
alleged recovery of contraband in illegal search manner cannot
be taken into evidence against the applicant/ accused. Ld. counsel
further submitted that at the time when the ACP was not in the
receipt of any secret information, meaning thereby the warrant or
authorization issued by ACP was in contravention of Section
41(2) of NDPS Act, which also entitles the applicant/ accused for
grant of bail. Ld. counsel further submitted that if a police
officer without any prior information as contemplated under the
provisions of the NDPS Act makes a search or arrest a person in
the normal course of investigation into an offence or suspected
offences as provided under the provisions of Cr.PC and when
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State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 2/7
such search is completed at that stage Section 50 of NDPS Act
would not be attracted and question of complying with the
requirements would not arise. Ld. counsel further submitted that
the applicant/ accused has been falsely implicated in the present
case. Ld. Counsel prayed for grant of bail to the applicant/
accused.
4. Ld. Addl. PP for the state opposed the regular bail
application and submitted that the commercial quantity of
contraband i.e. 355 Grams of heroin was recovered from the
applicant/ accused and thus, bar of Section 37 NDPS Act applies
in this case. Ld. Addl. PP further submitted that the applicant/
accused was previously involved in 04 similar cases of NDPS
Act. With regard to authorization, Ld. Addl. PP argued that the
authorization to conduct search has been duly given by the ACP
on 22.04.2024 at 7 pm as reflected from the document annexed
with the charge-sheet. Ld. Addl. PP for the state prayed for
dismissal of the bail application of the applicant/ accused.
5. As per the case of prosecution, on 22.04.2024, at
about 06:00 PM, a secret informer informed that "A person
namely Javed, age about 40 years, resident of Ushait, Badaun,
UP is involved in supplying Heroin in Delhi and supplies Heroin
in bulk and retail from his rented address. Applicant/ accused has
brought Heroin from UP and kept the Heroin at his rented house,
if raided at his rented house, he can be caught with Heroin".
Thereafter the secret information was lodged in CCTNS vide GD
No. 246A, dated 22.04.2024, PS Crime Branch, Delhi and
printout was submitted to Insp./ANTF, Crime in compliance of
Section 42 NDPS Act. A raiding team was formed and departed
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State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 3/7
to the place of information. Thereafter, secret informer signaled
towards a house and told that at the 2nd floor of this house, Javed
(i.e. applicant/ accused) is residing. Raiding team was reached at
2nd floor of Khasra No. 437/2, Laxmi Vihar, Delhi, one person
was found there, who disclosed his identity as Javed Ali @
Chhotu. Thereafter, notice U/s 50 NDPS Act was served to the
apprehended person Javed Ali @ Chhotu. Thereafter the search
of Javed Ali @ Chhotu was conducted and during the search, no
narcotics substance recovered. Thereafter a search of his house
was conducted and during search a black colour polythene found
under the bed, when the black color polythene was opened, a
transparent plastic polythene (having mouth tied with rubber
band) was found. On checking the transparent polythene, it was
found containing pink color powder. After removing the rubber
band, the powder was checked on field testing kit and found to be
Heroin. The recovered Heroin along with transparent polythene
was weighted and found 355 grams. Thereafter the transparent
plastic polythene was put in black colour polythene and same
was seized in a plastic box and the box was sealed with the seal
of RK and taken in police possession through seizure memo.
Thereafter, case was got registered and applicant/ accused was
arrested in this case. During interrogation, applicant/ accused
disclosed that he procured the recovered contraband from one
Arshad Ali @ Bhoore @ Sahil resident of Village-Behra,
District-Bareilly, UP. He further disclosed that he had to supply
the recovered contraband to one Pinki. He also disclosed that he
used to supply of Heroin to Pinki. On 24.04.2024, a trap laid to
arrest of Pinki and a call made by Javed to Pinki and asked her to
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State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 4/7
get Heroin and in reply, Pinki said him to bring 100 Gram of
Heroin and also said him to come to Nangloi stand in Najafgarh,
Delhi. Thereafter, applicant/ accused Javed Ali @ Chhotu
reached at above said place and after some time Pinki came there
and she apprehended and Rs. 1 Lac recovered from her
possession.
6. From the facts, it is seen that the accused/ applicant
was named in the secret information and on the basis of which,
he has been apprehended and commercial quantity of contraband
i.e. 355 grams of heroin has been recovered from his house
consequent upon the search. Ld. counsel raised contention that
upon the GD entry no. 246A dated 22.04.2024, there is an
endorsement of ‘seen’ dated 23.04.2024 by the ACP alongwith
stamp of diary number of the office of ACP with date
23.04.2024. Ld. counsel argued that while authorization of
search U/s 41(2) NDPS Act has been granted by the ACP on
22.04.2024, however, the first GD entry i.e. GD no. 246A dated
22.04.2024 is seen by the ACP on 23.04.2024 after giving
authorization of search U/s 41(2) NDPS Act on 22.04.2024. In
this regard, Ld. Addl. PP argued that this very GD No. 246A
dated 22.04.2024 records that the secret information was
transmitted to the ACP at 6:30 PM who immediately ordered for
the raid and therefore, the authorization of search given by the
ACP bears the time of 7 PM on 22.04.2024. Ld. Addl. PP further
argued that the endorsement of ‘seen’ and stamp of diary number
of ACP office are further formalities which are completed on the
next day and therefore, the date of that endorsement and diary
number is 23.04.2024 and there is no material defect to entitle
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State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 5/7
bail to the accused/ applicant. Considering these rival
submissions, it appears that while information was given to the
ACP at 6:32 PM, as reflected from GD entry no. 246A dated
22.04.2024, the authorization for search U/s 41(2) NDPS Act
was issued by him at 7 PM on the same day. I am therefore
convinced with the submissions of Ld. Addl. PP in this regard
that the endorsements of the ACP upon the said GD entry may
have been carried out in a formal manner routinely on the next
date i.e. 23.04.2024. Thus, there appears to be no material defect
so as to lift the bar of Section 37 NDPS Act in this case.
7. Thus, the contentions of the Ld. counsel with respect
to non-compliance of Section 41 & 42 NDPS Act are not tenable
at this stage. In Praveen Khatri Vs. State (NCT of Delhi), Bail
Appl. No. 1245/2022 decided on 21.09.2023, the Hon'ble High
Court of Delhi observed as under :-
“18. As the present application is with respect to grant of bail
to the applicant, in the opinion of this Court, any finding as to
the compliance of a statutory requirement will be premature as,
the same is a matter of trial. The fact that prima facie this Court
is convinced on the reading of the notices and the FIR that the
prosecution has followed the prescribed procedures under
Sections 41(2), 42 as well as Section 50 of the NDPS Act, in
the opinion of this Court, is sufficient for denying bail to the
applicant at this stage.
19. In view thereof, holding that the prescribed procedure have
not been followed at this stage, without giving an opportunity
to the prosecution to establish compliance of the mandates set
out in the aforesaid provisions of the NDPS Act at the stage of
trial, is unwarranted as issuance of the said notices are in itself
a question of fact to be raised and determined at the stage of
trial. Reliance in this regard is placed upon Baladev Singh
(supra), wherein the Hon'ble Supreme Court has held as under:
"57. ... ... (5) That whether or not the safeguards provided in
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State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 6/7
Section 50 have been duly observed would have to be
determined by the Court on the basis of evidence led at the
trial. Finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal.
Without giving an opportunity to the prosecution to establish,
at the trial, that the provisions of Section 50, and particularly
the safeguards provided therein were duly complied with, it
would not be permissible to cut-short a criminal trial; ... ..."
20. A Co-ordinate Bench of this Court in BAIL APPLN.
3248/2021 titled Naveed Ummer Sheikh vs. Narcotic Control
Bureau in its order dated 23.11.2021 has held that any
procedural defects or violation thereof would be a matter of
trial.
21. Lastly, the Court cannot forego the fact that the burden
always remains on the prosecution to prove the guilt of the
accused beyond reasonable doubt and it cannot be ignored that
the applicant has yet not come up with any plausible
explanation as to the reason for his possession of such large
quantities of contraband. Furthermore, there is no dispute qua
the presence of the applicant or to the recovery of the
contraband from the applicant and to the role of the applicant.
Each of the above, individually, and also collectively, has/have
a special significance at this stage, when this Court is
considering granting bail to the applicant.
8. Thus in the light of above authority, the contentions
raised by the accused/ applicant with respect to non-compliance
of Section 41 & 42 NDPS Act would be a matter of trial.
9. The fact remains that commercial quantity of
contraband i.e. 355 grams heroin has been recovered from the
applicant/ accused. There is a presumption U/s 54 NDPS Act
standing against the accused/ applicant, which has arisen out of
his possession of illicit contraband and for which possession he
has failed to account satisfactorily. In view of above facts and
circumstances of the case, at this stage no grounds for grant of
bail is made out as the rigors of Section 37 NDPS Act applies in
this case and twin test is not satisfied as no satisfaction can be
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State Vs. Javed Ali @ Chhotu
FIR No.86/24
PS Crime Branch
Pages No. 7/7
derived at this stage that there are reasonable ground for
believing that the applicant/ accused is not guilty of the offence
and that he is not likely to commit any offence while on bail.
Accused/ applicant is having 04 prior involvements in similar
NDPS Cases. In my considered opinion and owing to the given
facts and circumstances of the case, I am not inclined to grant
bail to the applicant/ accused at this stage. Accordingly,
application seeking grant of regular bail to the applicant/ accused
Javed Ali @ Chhotu stands dismissed.
10. 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.
11. 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.
(PRANJAL ANEJA)
Special Judge, NDPS-02,
Central,THC, Delhi/11.03.2025(kk)
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