Order 8

Order Details: COPY OF ORDER
Pdf Text: Bail application IA no. 04/2024 & 05/2024
SC No. 362/2024
State Vs. Jay Kumar S/o. Govind Singh & Tushar Kumar S/o.
Yogesh Kumar
FIR No. 243/2023
PS Crime Branch
U/s. 21/29 NDPS Act
20.05.2024
Present : Sh. Ramesh Bajiya, Ld. Addl. PP for the State.
Sh. I.P. Saini, ld. counsel for applicant/ accused Jay
Kumar.
Sh. Devesh Kumar with Sh. Sohan Singh and Ms.
Amreen Qadri, Ld. counsel for applicant/ accused
Tushar Kumar.
Vide this common order, this Court shall decide 1st
bail application of accused Jay Kumar and 2nd bail application of
accused Tushar Kumar.
It is urged on behalf of applicants that the
applicants / accused persons are innocent and have been falsely
implicated in the present case. It is further urged on behalf of
applicant that they have not committed any offence and the
allegations levelled against them are false and frivolous.
It is contended that on 13.10.2023, the applicant
Tushar and his wife were coming from Agra, UP and when they
reached near Akshardham Flyover, Delhi at around 12.00 Noon,
they had been stopped and illegally and forcefully lifted by the
concerned police officials at around 12.00 Noon and taken to PS
Crime Branch Daryaganj and both applicants have been falsely
implicated in the present case. However in the FIR itself, it is
stated that at around 15:20, a Car No. UP83BM5565 coming
from Metro Depot to Railway Line Akshar Dham Flyover was
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seen and that Car was stopped at around 15:25 under Akshar
Dham Flyover and they were apprehended as alleged.
It is further contended that police have failed to
produce any CCTV footage about the alleged incident and time.
It is submitted that the applicants/ accused have no previous
criminal antecedent and no case has ever been registered or filed
or pending against them except the present false case. It is further
submitted that no recovery of any Narcotic Drugs and
Psychotropic Substances has been found from the applicants/
accused and alleged recovered contraband was planted upon him.
It is further submitted on behalf of applicants/
accused that the police officials have not complied the provisions
of Section 50 NDPS Act. It is submitted that the Hon’ble Apex
Court in catena of judgments held that “
the requirements of
Section 50 of NDPS Act is mandatory in nature and on its non-
compliance, the applicant is entitled to release on bail”. It is
submitted that the applicants / accused belong to respectable
families.
It is further submitted that there is no public witness
to prove the factum of recovery of contraband from the accused
persons. It is further submitted that applicants are in JC since
13.10.2023 and no fruitful purpose would be served by keeping
them behind the bar. It is further submitted that applicants are
permanent resident of Delhi and UP respectively and there are no
chance of their absconding from justice. It is further submitted
that applicants are young of age and are sole bread earner of their
respective families and in case, they are not granted bail, their
entire family would come on road. It is contended that applicants
are ready to abide by the terms and conditions imposed by this
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Court and also ready to furnish the reliable and sound surety to
the satisfaction of this Court. It is submitted that first bail
application of accused was dismissed by this Court on
19.01.2024. Thus, it is prayed that applicants / accused be
admitted to bail.
Reliance is placed by the ld. counsel for accused Jay
Kumar on the judgments of Mohd. Jabir Vs. State of NCT of
Delhi, Emeka Emmanuel Vs. State, Vijaysinha Chandubha Jadeja
Vs. State of Gujarat, Sumit Rai @ Subodh Rai Vs. State and Arif
Khan @ Agha Khan Vs. The State of Uttrakhand.
Reply to the Bail application of accused Tushar
Kumar had been filed by the IO. It is submitted that on
13.10.2023, ASI Upender along with staff was present in the area
of Delhi for developing information about drug peddlers vide DD
No. 40A, Dated 13.10.23, PS Crime Branch. A secret informer
met ASI Upender and informed him that one person namely
Tushar r/o Delhi, aged about 25-30 yrs, who is indulged in
supply of illegal drugs Heroin, would come to Delhi in his
vehicle no. UP83BM5565 along with his associate namely Jay to
deliver Heroin to someone at about 03:00 PM to 03:30 PM near
Akshardham Flyover and if a raid is conducted, he along with his
associate namely Jay can be apprehended with a huge quantity of
Heroin. Thereafter, secret information was shared with Insp.
Jasbir Singh telephonically, who after taking due approval from
ACP/ARSC/Crime Branch SH. Arvind Kumar, directed ASI
Upender to take appropriate legal action. The said information
was lodged in compliance of section 42 of NDPS Act and
thereafter, a raiding team was constituted by ASI Upender and a
trap was laid near place of secret information and at about 15:20
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Hrs, one Tushar Kumar s/o Yogesh Kumar and Jay Kumar s/o
Govind Singh and one Lady named Tanuja Singh w/o Tushar
Kumar were apprehended with the help of ladies staff and after
due legal formalities under NDPS Act, notices U/s 50 NDPS Act
were served upon them. It is further stated that during the search
of apprehended persons, 400 Grams of Heroin was recovered
from Tushar Kumar, 350 grams of Heroin was recovered from
Jay Kumar and nothing was recovered from the possession of
Tanuja Singh. The contraband Heroin was seized through seizure
memos and the present case was registered and the investigation
of the case was taken up by ASI Naresh Kumar.
It is further stated that during investigation, Tushar
Kumar and Jay Kumar were interrogated and arrested in the
present case and their disclosure statements were recorded. It is
contended that efforts are now being made to trace the source of
the contraband.
Ld. APP has strongly opposed the present bail
application on the ground that there is likelihood of the applicant
indulging in same crime, if he is released on bail. The quantity of
contraband (400 gms Heroin) seized from the possession of the
applicant is commercial in nature, as per NDPS Act, 1985. Since,
commercial quantity of contraband has been recovered from the
applicant, the rigour as enumerated under section 37 NDPS Act
will have a strong bearing and would have a pivotal role while
considering the present application seeking bail.
Section 50 is the soul of the statutory protections
afforded to an accused person under the NDPS Act. This
statutory provision is based on “
Fruit of the Poisonous Tree”
doctrine and has been included in the statute with an intent to
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protect against malicious prosecution, especially keeping in view
the stringent nature of the penal provisions under the NDPS Act.
In
Vijaysinh Chandubha Jadeja vs. State of Gujrat (2011) 1
SCC 609, Hon’ble Supreme Court held that “
the object of
Section 50(1) of the NDPS Act is to check the misuse of power,
to avoid harm to innocent persons and to minimise the
allegations of planting or foisting of false cases by the law
enforcement agencies”. Non-compliance with the mandate of
section 50 may not only entail acquittal upon trial but would also
entitle the accused to release on bail. The said provision is noted
below:
50. Conditions under which search of
persons
shall be conducted -
(1) When any officer duly authorised under section 42 is about
to search any person under the provisions of section 41, section 42
or section 43, he shall, if such person so requires, take such person
without unnecessary delay to the nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest Magistrate.
In judgment dated 18.11.2022, reported as
Emeka
Emmanuel vs State in Bail application No. 1231/2022, the
Hon'ble High Court of Delhi observed as under:
“9.The Hon’ble Supreme Court as well as this Court
has clearly opined that in case Section 50 of the NDPS
Act is not complied with, the applicant is entitled to
bail.”
Recently in
Heena Khatun v. State (NCT of
Delhi), 2023 SCC OnLine Del 2600, the Hon’ble High Court
observed as under:
13. In Karnail Singh v. Stateof Haryana, (2009) 8 SCC
539, the Supreme Court has observed:
“6. The NDPS Act prescribes stringent punishment.
Hence, a balance must be struck between the need of
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the law and the enforcement of such law on the one
hand and the protection of citizens from oppression and
injustice on the other. This would mean that a balance
must be struck in. The provisions contained in Chapter
V, intended for providing certain checks on exercise of
powers of the authority concerned, are capable of being
misused through arbitrary or indiscriminate exercise
unless strict compliance is required. The statute
mandates that the prosecution must prove compliance
with the said provisions.”
14. NDPS act prescribes stringent punishments. The
mandatory provisions and inbuilt safeguards lend
fairness to the procedure of recovery and seizure. To
leave these question for trial would thus amount to
travesty of justice.
15. Section 42 and section 50, thus is to prevent false
implication of an innocent person. It lends certain
fairness to the procedure of recovery and seizure. In the
present case, the procedure prescribed under
Sections 42 and 50 of the NDPS Actwas not followed
by the prosecution.
The court has perused the notices served upon the
accused persons/applicant under section 50 NDPS Act. It is
evident that the notices are defective as the notice issued to
accused Tushar contains the signature and statement of accused
Jay and vice versa. Since the notices are defective, there is an
apparent violation of the explicit requirement of section 50
NDPS Act. Consequently, not only the notice under section 50
NDPS Act is palpably invalid, the refusal by the accused for
being searched as offered to him in the said notice is also
inconsequential.
Thus, while the adjudication of the circumstances
and validity of the recovery from accused persons/applicants
would be a subject of final adjudication upon evidence, the court
does find the prosecution version to have been dented enough to
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create a positive finding in favour of accused persons/applicants
for the limited plea of bail within the expectation under section
37 1(b)(ii) NDPS Act.
The court would highlight here that section 37
contemplates the standard of reasonable belief which is
essentially more than prima facie belief. The invalid notice
served upon the accused Tushar and Jay Kumar under section 50
NDPS Act leads the Court to record on the said standard and for
the limited purpose of deciding the plea for bail that accused
persons are not guilty of the offence in question. In as much as
the allegations form the substratum of a further presumption of
commission of any offence by the accused, if admitted to bail,
the collapse of the validity of the recovery proceedings also leads
the Court to record that the accused is not likely to commit any
offence if admitted to bail.
The application is allowed.
Applicants/accused persons Tushar Kumar and Jay
Kumar are admitted to bail on furnishing of PB & SB in sum of
Rs. 50,000/- each.
The surety shall be a local resident of Delhi. The
accused is directed to inform the IO regarding his mobile phone
number and address as well as any change in the same. The
accused shall not contact, influence or coerce any
witness/person connected with the present case.
Copy of this order be given dasti.
(ALOK SHUKLA)
ASJ-2/Special Judge (NDPS)
East/KKD/Delhi/20.05.2024
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