Interim Order 18

Order Details: COPY OF ORDER
Pdf Text: IA/6/24
SC No. 15/24
State Vs. Aasif & Ors.
FIR No. 667/23
PS Bhalswa Dairy
U/s 21/29 NDPS Act
18.06.2024
This is an application under section 439 Cr. PC for grant of
regular bail moved on behalf of accused/applicant Waseem.
Present: Ms. Promila Singh, Ld. Addl. PP for the State.
Sh. Hasim Alam, Ld. Counsel for accused/applicant.
IO is present.
Further reply to the present application filed. Copy
supplied.
ARGUMENTS ON BEHALF OF ACCUSED/APPLICANT
1.1 It is argued on behalf of accused/applicant that the
applicant / accused has been falsely implicated in the present
case. It is further argued that the only incriminating evidence
against the accused / applicant Waseem is the disclosure
statement of co-accused Aasif and disclosure statement of co-
accused is inadmissible as per law. It is further submitted that no
evidence has come on record to prove the involvement of the
accused in the present case. Further, charge sheet has already
been filed in the present case and charge has been framed against
the accused persons vide order dated 04.04.2024. Trial will take
long time, therefore, no useful purpose will be served in keeping
the accused/applicant in custody. Hence, it is prayed that
accused/applicant may be released on bail as he is ready to abide
contd.....
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with any condition, imposed by the court, if he be released on
bail.
1.2 Ld. Counsel has relied upon the judgments titled as
Satish Kumar Vs State of Punjab, Crl M-21422-2023, Paramjit
Singh Gulati Vs Directorate of Revenue Intelligence in Bail
Application 672/22 and Harun Vs State (Govt. of NCT Delhi)
in Bail Application no. 1918/21, all passed by the Hon’ ble High
Court of Delhi,in support of his arguments.
ARGUMENTS ON BEHALF OF STATE
2.1 Per contra, Ld. Addl. PP for the State has
vehemently opposed the application stating that as per the reply
filed by the IO, co-accused Aasif was apprehended with 500
gram of heroin and he was arrested in the present case and during
interrogation, accused Aasif disclosed that he procured 1 kg of
heroin from Rahul and Rifat Ali @ Danish and out of which he
supplied 500 gram to accused Babli and remaining heroin of 500
gram was to be supplied to one Sharifa. During PC remand,
accused Aasif disclosed that he also procured heroin from
accused Waseem and same was supplied to one lady namely
Seema. On 18.07.2023, at the instance of accused Aasif, co-
accused Danish @ Rifat Ali was apprehended with 300 gram of
heroin which was recovered from car bearing registration no.
UP-25DL-8462 and the said car was found registered in the name
of accused Danish @ Rifat Ali. The raid was conducted at the
house of accused Waseem but he absconded.
contd....
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2.2 On 16.11.2023, accused Babli was formally arrested
as she was granted anticipatory bail by the Hon’ble High Court
of Delhi.
2.3 The accused / applicant Waseem could not be
apprehended despite several raids and despite pasting of notices
u/s 67 NDPS Act at his house. NBWs against him were obtained
from the Hon’ble Court and thereafter, proceedings were initiated
against him. On 24.05.2024, accused Waseem surrendered
before the Hon’ble Court and later he was formally arrested in
the present case.
2.4 Further, the applicant / accused Waseem is being
previously involved in two cases i.e. FIR no. 02/18 PS CBN,
Barelli, UP u/s 8/21/29 NDPS Act and FIR no. 09/23 PS Crime
Branch u/s 21/25 NDPS Act.
2.5 Therefore, prayer is made to dismiss the present
application as the recovery effected in the present case is
commercial in nature and bar of section 37 NDPS Act is
applicable to the present case.
Submissions heard. Record perused. I have also gone
through the judgments relied upon by Ld. Counsel for the
applicant / accused.
FINDINGS/CONCLUSION
3.1 The allegations against the accused are serious in
nature. He is the source of supply of contraband to co-accused
persons and played an active role in the drug cartel. When his
name was disclosed by co-accused, he was served with notices
contd....
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u/s 67 NDPS Act but he did not join the investigation.
Resultantly, NBWs were issued against him and same were also
remained unexecuted. Consequently, process u/s 82 Cr. PC was
issued by the court and only when accused surrendered before
the court. Meaning thereby, accused tried his level best to avoid
proceedings and it would be difficult to ensure his presence for
the purpose of trial.
3.2 As per report filed by the IO, he is involved in two
other cases, one is of year 2018 and second one is of year 2023.
It reflects that accused is habitually dealing in contraband and
there is every likelihood that he may commit further offence of
similar nature, if released on bail. Moreover, investigation against
him is yet to be concluded as he has surrendered before the court
only on 24.05.2024.
3.3 Co-accused have been found in possession of
commercial quantity of contraband and the role of present
accused is of conspirator which is punishable under section 29 of
NDPS Act. Law is settled that a conspirator shall be punished
according to the main offence may be committed by co-accused
persons and not by the accused personally. Therefore, bar of
section 37 of NDPS Act is applicable against the present accused
as well, as recovered quantity from accused persons is
commercial in nature. Accused / applicant has failed to lift the
bar u/s 37 NDPS Act and he is not entitled to be released on bail
at this stage of investigation pending against him.
3.4 In Mansab Ali Vs. Irsan and Anr. 2003 SC 707, it
has been held by Hon’ble Supreme Court that since the
jurisdiction is discretionary, it is required to be exercised with
contd....
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great care and caution by balancing valuable right of liberty of
an individual and the interest of the society in general.
3.5 The judgments relied upon Ld. Counsel for the
accused/applicant are not applicable to the present case being
distinguishable on facts and moreover, granting bail is a
discretion which is to be exercised by the Court as per facts and
circumstance of each case.
3.6 Considering the facts and circumstances and the
conduct of accused, no ground is made out to allow the bail
application. Hence, bail application moved on behalf of
accused/applicant Waseem is dismissed accordingly.
Nothing in this order shall tantamount to an
expression of opinion on the merits of the case during trial.
Pursuant to directions issued by Hon’ble
Supreme Court of India in SMWP (Criminal) No. 4/2021
titled as In Re Policy Strategy for Grant of Bail as well as in
compliance of judgment titled as Ajay Verma Vs. State, copy
of this order be sent to Jail Superintendent through e-mail.
Copy of this order be given dasti as prayed for.
(Dhirendra Rana)
Vacation Judge / Special Judge (NDPS):
North, Rohini Courts, Delhi
18.06.2024
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