Interim Order 11

Order Details: COPY OF ORDER
Pdf Text: IA/2/23
SC No. 38/23
State Vs Sanjay
FIR No. 174/22
PS Crime Branch
U/s 15/25 NDPS Act
29.04.2023
Present: Ms. Promila Singh, Ld. Addl PP for the State.
None for the applicant / accused.
Arguments have already been heard on the
application under Section 439 Cr.P.C for grant of regular bail to
accused / applicant Sanjay.
It is pleaded on behalf of the applicant that the
accused/applicant has been falsely implicated in the present case
and has been lying in Judicial Custody since 21.08.2022. It is
further submitted that nothing incriminating has come forward
against the accused / applicant. It is further submitted that he has
been arrested only on the basis of the disclosure statement of
other accused persons which is not admissible. It is further
pleaded that as such nothing has been recovered from the
possession of the accused/applicant and the alleged recovery is
planted upon the accused/applicant.
The additional ground which has been argued on
behalf of the applicant is that the case of the prosecution with
respect to the compliance of the mandatory provisions of section
50 NDPS Act is faulty. It is argued on behalf of the applicant
that as per the notice issued in the present case under section 50
NDPS Act, the option given to the applicant / accused was that he
has a right to get his search effected in the presence of any
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Gazetted Officer / Magistrate. It is pleaded on behalf of the
applicant that the said option given on behalf of the investigating
authority is against the settled proposition of law as now laid
down by the Hon’ble Delhi High Court in case titled as Mohd.
Jabir Vs State of NCT of Delhi in bail application no. 1725/22
dated 28.03.2023.
Apart from that, as far as the issue of possession is
concerned, it is argued that the applicant has no connection at all
with the godown in question from where the alleged recovery has
been effected. There is no rent agreement filed on record. The
alleged possession also cannot be said to be conscious possession
from the accused and in this regard, reliance is placed upon the
judgment of Hon’ble Delhi High Court in case Galiv Hussain Vs
State GNCT of Delhi in bail application no. 3425/22 decided
on 25.04.2023.
Ld. Counsel for the applicant has also placed
reliance upon the judgments passed by the Hon’ble Delhi High
Court titled as Haresh Rawal Vs Narcotics Control Bureau in
bail application no. 1177/2021 decided on 03.06.2021 and Amit
Ranjan Vs Narcotics Control Buraeu, Delhi in bail application
no. 1189/20 decided on 23.05.2022.
It is further pleaded on behalf of the
accused/applicant that the chargesheet in the matter has been
filed and the trial will take its own time. Hence, prayer for grant
of bail is made.
Per contra, Ld. Addl. P.P for the State has
vehemently opposed the bail application stating that as per the
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reply filed by the IO, on the intervening night of 16-17/08/2022,
on a prior information regarding supply of poppy straw, a trap
was laid and one tempo Tata Ace DL 1LW 4392 was intercepted
which was loaded with 8 plastic bags containing poppy straw and
accused Raj Kishore and Rajesh Rajpit were arrested. Each bag
was weighing around 19.7 KG (Total 154.6 KG poppy straw ) on
the basis of which FIR was got registered. On the interrogation of
the accused persons, the applicant / accused Sanjay was arrested
with poppy straw weighing around 356.6 KG from the godown
situated at Village Khera Kalan which he had taken on rent. It is
further submitted that the applicant has rented a godown on the
instance of Nirpal and Nirpal used to give directions to him over
phone. The CDRs too reflect constant conversation between
them. Source of the recovered contraband was disclosed to be
one Nirpal who is still absconding and coercive process has been
got issued qua him.
The applicant may jump the bail if granted to him at
this stage. It is further submitted by Ld. Addl. PP for the State
that the accused/applicant is involved in recovery of commercial
quantity of contraband and hence, rigors of Section 37 of NDPS
Act are attracted in the present case.
Heard and considered.
The alleged recovery effected from the possession of
the applicant in the present case is 356.6 kg of Poppy Straw
which is a commercial quantity and hence the bar u/s 37 NDPS
Act is attracted in the present case.
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It is well settled proposition of law that for
discharging the onus placed upon the accused u/s 37 of NDPS
Act, the accused / applicant is required to show the existence of
the reasonable grounds to reflect that he / she is not guilty for the
offence charged. The onus is not that of proving the case beyond
reasonable doubt as is upon the prosecution in a criminal trial.
In the said backdrop, it has to be seen as to whether
the applicant has been able to prove the existence of reasonable
ground which shows that he being not guilty for the offence
charged.
The first legal issue raised on behalf of the applicant
is that there is non compliance of the mandatory provisions of
the Section 50 NDPS Act as option given to the accused for
getting his search effected in presence of Gazetted Officer /
Magistrate is a faulty one. The said argument on behalf of the
applicant is itelf misplaced one. The case of the prosecution
herein is with respect to the recovery effected from the alleged
godown situated at Village Khere Kalan which is alleged to be
under the tenancy and occupation of applicant. Therefore, the
search effected at the said godown is not covered within the
scope of Section 50 NDPS Act.
As far as the second issue raised on behalf of the
applicant regarding the godown having no connection with the
applicant and he being not in conscious possession with the
articles stored in it is also misplaced one. The prosecution has
placed reliance upon the statement of one Jai Kishan recorded
under section 161 Cr. PC who is the owner of the godown. The
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applicant is the tenant in the godown in question from where the
recovery has been effected. The said Jai Kishan had let out the
godown to the applicant on rent in March 2022 and no rent
agreement was executed. Therefore, there is no question of
availability of rent agreement. The onus is upon the applicant
being the tenant to explain about the presence of ten plastic kattas
kept in the said godown having poppy straw weighing 356.6 kg.
Further, one of the co-accused Nirpal Singh is still at large who is
the source of the contraband and co-conspirator working in
conjunction with the named accused persons.
In these circumstances, it has to be observed that the
applicant has failed to discharge his onus u/s 37 NDPS Act. The
judgments relied upon Ld. Counsel for the accused/applicant are
not applicable to the present case being distinguishable on facts.
In view of the above facts and circumstances of the
case, I am of the considered view that no ground is made out
for grant of bail to accused/applicant Sanjay. Therefore, the
application moved on behalf of the accused/applicant stands
dismissed.
A copy of this order be sent to the Jail
Superintendent concerned for further communication to the
accused/applicant. Copy of this order be also forwarded to
Superintendent concerned through E-Mail.
(Gagandeep Singh)
ASJ/Spcl. Judge(NDPS)
North/Rohini Courts, Delhi
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