Order 11

Order Details: COPY OF ORDER
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State Vs. Toheed
FIR no. 133/2023
PS Crime Branch
U/s 21/29 NDPS Act
27.10.2025
This is an application U/s 483 BNSS, 2023 seeking
grant of regular bail to the applicant/ accused.
Present: Sh. K.P. Singh, Ld. Addl. PP for State.
Mr. Satish and Mr. G.S. Arora, Ld. Counsels for
applicant/accused.
IO SI Jay Kumar is absent, however, reply to bail
application is already filed. Copy already supplied.
Arguments heard.
Ld. Counsels for the applicant/ accused submit that
the applicant/ accused has been falsely implicated in the present
case and the case property is planted upon applicant/accused.
They further submit that allegedly the police had secret
information and thereafter the applicant/accused was arrested
near ISBT at about 06.35 pm. According to them, the said place
is busy and publice persons are always available at that place but
the police had not joined any public witness while doing alleged
recovery and arresting the applicant/accused. They further submit
that no videography or photography of the alleged recovery was
made by the police.
They further argue that it is the case of prosecution
that at the time of recovery, the recovered substance was tested
and it was found Heroin but as per report of FSL, the samples
sent to FSL is not Heroin nd there are some neutral subtances
also. Thus according to him, either the sample was not taken
from the alleged recovered substance from the applicant/accused
or that Herion was not recovered from the possession of
applicant/accused. They further argue that there is delay of about
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20 days in getting conduct proceedings U/s 52A NDPS Act and
there is delay of 27 days in sending the sample in FSL. They also
argue that at the time of doing the proceedings U/s 52A NDPS
Act, the recovered substance was weighed and its measurement
was 342 gram, however at the time of initial recovery its weight
was 340 gram. Thus according to them, the case property is
tampered.
They further argue that at the time of alleged
recovery, the accused was provided notice U/s 50 NDPS Act.
They have drawn attention of this court on the reply of
applicant/accused and argued that even on perusal of the above
said notice it can specifically observed that the applicant/accused
had not stated that he does not want to himself to be searched
before Gazetted Officer or Magistrate. According to them, the
said applicant/accused had only refused to search the police
official and their vehicle.
They further submit that thus the applicant/accused
has satisfied twin conditions provided U/s 37 NDPS Act and the
applicant/accused is in JC since 07.06.2023. They further submit
that the investigation is already complete and the charge-sheet
has already been filed.
They further submit that the previous bail
application of applicant/accused was dismissed in December
2024 and thereafter the co-accused Junaid Khan has been
admitted to bail by Hon’ble Delhi High Court vide order dt.
27.01.2025. Thereafter, the applicant/accused had preferred bail
application before Hon’ble Delhi High Court but the same was
dismissed as withdrawn vide order dt. 28.07.2025 with liberty to
file fresh bail application before the Ld. Trial Court. Therefore,
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they request to allow the bail application of applicant/accused.
Per contra, Ld. Addl. PP for the state as well as IO
(by way of reply) have vehemently opposed the bail application.
Ld. Addl. PP for the State has argued that Ld. Counsel for
applicant/accused has not annexed the previous bail order, vide
which the bail application of applicant/accused was dismissed
and therefore according to him the present bail application is not
maintainable. In support that he has relied upon the judgment
titled as Kusha Duruka Vs. The State of Orisha, CRL Appeal no.
303/2024 decided on 19.01.2024 by Hon’ble Supreme Court of
India.
He further argues that commercial quantity was
recovered from the possession of applicant/accused, however,
nothing was recovered from the possession of co-accused Junaid,
therefore, the applicant/accused can not be admitted to bail on the
parity.
He further argues that the previous bail application
of applicant/accused was dismissed on merits and there is no
change of circumstances after dismissal of previous bail
application. He also argues that the charge has already been
framed. He further argues that within Heroin or something else
was recovered from the possession of applicant/accused does not
matter at this stage. He further argues that since commercial
quantity was recovered therefore Section 37 NDPS Act is
applicable. He also argues that there is no ambiguity in the notice
U/s 50 NDPS Act and the IO has specifically mentioned that the
applicant/accused can get himself searched before the Gazetted
Officer or Magistrate. Therefore, he request to dismiss the bail
application of applicant/accused.
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Submissions considered. Record perused.
As per the facts of the case on 07.06.2023, the
applicant/accused was apprehended after secret information and
prima facie 340 gram Herion was recovered from his possession.
Thereafter, the applicant/accused was arrested. The procedure as
prescribed under NDPS Act were followed. The investigation
was completed and the charge-sheet was filed. The previous bail
application of applicant/accused was dismissed by Ld.
Predecessor of this court vide order dt. 11.12.2024. Thereafter,
the bail application of applicant/accused was dismissed by
Hob’ble Delhi High Court as withdrawn vide order dt.
28.07.2025. Ld. Counsel for applicant/accused has contended the
police allegedly checked the substance recovered from
applicant/accused and they came to the conclusion that the
recovered substance is Herion, however, FSL result is something
else. After going through the FSL result, it is observed that
various components were found in the sample which are
restricted substance and also specifically mentioned in the
schedule annexed in the NDPS Act. As to whether the substance
was Heroin or something else is a matter of trial but as of now it
is clear that it was restricted substance as prescribed in the NDPS
Act. Further the fact that whether the police had joined any
public person or did not photograph or videograph the incident of
recovery itself does not entitle the applicant/accused to be
admitted to bail. Further the variation of 2 gram in the recovered
substance weighed at the time of recovery and during
proceedings U/s 52A NDPS Act is also a matter of trial which is
dependent upon various factors as argued by Ld. Addl. PP for
State. Further, Ld. Counsel for
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applicant/accused has contended that the applicant/accused had
not refused to get himself searched before Gazetted Officer or
Magistrate. The reply to notice U/s 50 NDPS Act is bearing the
signature of applicant/accused and the IO has specifically asked
the applicant/accused to get himself searched before the
Gazetted Officer or Magistrate but the applicant/accused has not
mentioned in reply that he wants himself to be searched before
Gazetted Officer or Magistrate. Thus there is not any ambiguity
in the notice U/s 50 NDPA Act and prima facie the
applicant/accused has waived his right to be searched before the
Gazetted Officer or Magistrate.
Ld. Counsel for applicant/accused has further
contended that accused Junaid has already been admitted to bail
by Hon’ble Delhi High Court vide order dt. 27.01.2025. This
court has gone through the bail order of accused Junaid and it is
observed that the Hon’ble Delhi High Court has specifically
considered that nothing was recovered from the possession of
said accused and there were not any financial transactions and
due to that reason he was admitted to bail but commecial quantity
was recovered from the possession of applicant/accused,
therefore, the role of applicant/accused and co-accused Junaid are
different and distinguishable, hence, the applicant/accused is not
entitled to bail on the ground of parity as well as on merits.
Accordingly, bail application of the applicant/ accused Toheed
stands dismissed.
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.
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Copy of the order be given dasti to the IO, Ld.
Counsel for applicant/ accused and be communicated to the
applicant/ accused in Jail through Jail Superintendent concerned.
(Virender Singh)
Special Judge, NDPS,
Central,THC, Delhi/27.10.2025
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