Order 42

Order Details: COPY OF ORDER
Pdf Text: IA/14/25
SC No.507/24
State vs. Rafat Hussain
FIR No. 120/24
PS Crime Branch
U/s 21/29 of NDPS Act
13.10.2025
This is the third application under section 483 BNSS for grant of
regular bail moved on behalf of accused/applicant Rafat Hussain.
Present: Dr. Raj Rani, Ld. Addl. PP for the State.
Hasim Alam, Ld. Counsel for accused/applicant,
through VC.
IO SI Rishi Kumar is present.
Reply to the application has already been filed. Copy
has been supplied.
ARGUMENTS ON BEHALF OF ACCUSED/APPLICANT
1.1 It is argued on behalf of accused/applicant that he
has been falsely implicated in this case and he is in JC since
29.07.2024. It is further submitted that accused/applicant has
nothing to do with the present offence and has been falsely
implicated in this case on the basis of disclosure statement of co-
accused Sonu which is not admissible. It is further argued that
the recovery has been planted upon the accused. It is argued that
section 42 of NDPS Act has not been complied with by the IO. It
is further argued that the information in compliance of section 42
of NDPS Act was received and acknowledged by ACP Sh.
Arvind Kumar, Shakarpur, Crime Branch, Delhi but he was not
the competent person or authority in the present matter. It is
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further argued that the officer designated and competent was
ACP Sh. Pankaj Arora, Central Range, Crime Branch under
whose supervision, all the subsequent documentation and
procedural steps were taken. It is further argued that non
compliance of section 42 of NDPS Act affects the admissibility
of evidence and legality of the search and seizure proceedings.
1.2 It is further submitted that search and seizure
proceedings were conducted without adhering to the mandatory
procedure prescribed under section 105 BNSS as no videography
or photography of the proceedings were carried out. It is further
submitted that no public witnesses were present at the time of
seizure. It is further submitted that grounds of arrest has not
been communicated to accused/applicant at the time of his arrest.
It is further submitted that there is no CDR connectivity or
financial transactions between the accused/applicant with other
co-accused persons.
1.3 It is further submitted that applicant has moved
another bail application before the Hon’ble High Court and same
was dismissed as withdrawn vide order dated 02.05.2025.
1.4 It is further submitted that the change of
circumstance since the dismissal of earlier application is that
charge has now been framed against the accused in the present
matter and the matter is at the stage of prosecution evidence. It is
further submitted that trial shall take its own time and no useful
purpose would be served by keeping the accused in further
custody. Therefore, it is prayed that accused/applicant be released
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on bail as he is ready to abide with any condition imposed by the
court.
1.5 Ld. Counsel has relied upon
Pankaj Bansal Vs
Union of India (2023) SCC Online SC 1244, Kashreddy Upender
Reddy Vs State of Andhra Pradesh & Ors. in Crl Appeal no.
2808/25 decided on 23.05.2025, Bantu Vs State in Bail
Application no. 2287/22 decided on 08.07.2024, to fortify his
arguments.
ARGUMENTS ON BEHALF OF STATE
2.1 Per contra, Ld. Addl. PP for the State has
vehemently opposed the bail application stating that as per reply
filed by IO on 14.06.2024, acting upon secret information,
accused Saurabh @ Gaurav was apprehended. During search of
accused, 160 grams smack was recovered from his possession.
During interrogation, accused Saurabh @ Gaurav disclosed that
he used to work for co-accused Sonu and Shanti @ Arti. CDR of
mobile number of accused Saurabh was also obtained which
reflects that accused Saurabh and Sonu were in regular touch
with each other.
2.2 On 23.06.2024, accused Sonu was also arrested and
total 150 grams of heroin was recovered from his possession.
Accused Sonu disclosed that he used to purchase smack/Heroin
from accused/applicant Rafat Hussain. During investigation on
29.07.2024, accused Rafat was also arrested and 275 grams
heroin was recovered from his possession.
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2.3 It is submitted that accused/applicant is a habitual
offender as he is involved in 5 cases of NDPS Act and there is
every likelihood that accused/applicant may commit further
offence of similar nature, if he be released on bail.
Submissions heard. Record perused. I have also
gone through the judgments/orders relied upon by Ld. Counsel
for accused/applicant.
FINDINGS/CONCLUSION
3.1 Allegations against the accused/applicant are serious
in nature. Initially, co-accused Saurabh @ Gaurav was
apprehended and 160 gram heroin was recovered from his
possession. On the disclosure statement of accused Saurabh @
Gaurav, name of co-accused Sonu and Shanti came into picture.
Co-accused Sonu was arrested and 150 grams heroin was
recovered from his possession. He used to supply the contraband
to co-accused Saurabh after purchasing the same from
accused/applicant Rafat Hussain. Accused/applicant Rafat was
arrested at the instance of co-accused Sonu and further 275
grams of heroin was recovered. Therefore, total 585 grams of
heroin has been recovered by the IO in this case to burst the drug
cartel.
3.2 The amount of quantity recovered from the
possession of accused persons falls under the category of
commercial in nature and bar of section 37 NDPS Act is
applicable. Therefore, the onus is upon the applicant to satisfy the
twin conditions imposed as mandated in judgment titled as Union
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of India through NCB (Lucknow) Vs. Nawaj Khan Criminal
Appeal No. 1043/2021.
3.3 In Varinder Kumar Vs. State of Himachal Pradesh,
AIR ONLINE 2019 SC 570, it has been observed by Hon’ble
Supreme Court of India as under:
“12. Individual rights of the accused are undoubtedly important.
But equally important is the societal interest for bringing the
offender to book and for the system to send the right message to
all in the society —be it the law abiding citizen or the potential
offender. ‘Human rights’ are not only of the accused but, extent
apart, also of the victim, the symbolic member of the society as the
potential victim and the society as a whole.
13. Law has to cater to wide variety of situations as appear in
society. Law being dynamic, the certainty of the legislation
appears rigid at times whenever a circumstance (set of facts)
appears which is not catered for explicitly. Expediency then
dictates that the higher judiciary, while interpreting the law,
considers such exception(s) as are called for without disturbing
the pith and substance and the original intention of the legislature.
This is required primarily for the reason to help strike a balance
between competing forces – justice being the end – and also
because the process of fresh legislation could take a long time,
which would mean failure of justice, and with it erosion of public
confidence and trust in the justice delivery system.”
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
great care and caution by balancing valuable right of liberty of an
individual and the interest of the society in general.
3.5 In Kalyan Chandra Sarkar Vs. Rajesh Ranjan @
Pappu Yadav 2005 SC 91, Hon’ble Supreme Court held that an
accused has a right to make successive applications for grant of
bail, the court entertaining such subsequent bail application has a
duty to consider the reasons or grounds on which the earlier bail
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applications were rejected. In such cases, the court also has a
duty to record what are the fresh grounds which persuade it to
take a view different from the one taken in the earlier application.
3.6 As stated above, this is third bail application moved
on behalf of accused and this court had dismissed his application
on merits vide order dated 31.01.2025 and thereafter, accused
withdrew the second bail application before the Hon’ble High
Court on 02.05.2025. Apart from framing of charge, all other
grounds pleaded in the application were available with the
accused on 02.05.2025 and after considering the seriousness of
offence, the Hon’ble High Court did not allow the bail
application.
3.7 Considering the over all facts and circumstances of
this case, I do not find that framing of charge is so strong as a
ground that it can be termed as ‘change in circumstance’ for
allowing the present bail application. Accused is also previously
involved in other cases under NDPS Act, hence, there is every
likelihood that he may commit further offence of similar nature,
if he is released on bail at this stage.
3.8 In view of the above facts and circumstances of the
case, bar of section 37 NDPS Act, numerous involvement of
accused in similar kind of offences, judicial discipline and
proprietary, I am of the considered view that no ground is made
out for grant of bail to accused/applicant Rafat Hussain.
Therefore, the application moved on behalf of the
accused/applicant Rafat Hussain stands dismissed and disposed
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of.
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
ASJ/Special Judge (NDPS)
North, Rohini Courts, Delhi
13.10.2025
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