Delhi High Court – Orders
Mithun Shaw vs State Govt. Of Nct Of Delhi on 4 June, 2025
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~SB-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1156/2025
MITHUN SHAW .....Petitioner
Through: Ms. Shivani Sharma, Advocate
through VC.
versus
STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Mr. Laksh Khanna, APP for the
State with SI Vikas, ISC/Crime.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER
% 04.06.2025
1. The present application has been filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to ‘BNSS’)
seeking regular bail in proceeding arising out of FIR No.293/2022, under
Section 20/25/29 of NDPS Act registered at P.S. Crime Branch, Delhi.
2. Briefly stated, the case of the Prosecution is as follows:
2.1. On 20th December, 2022, a secret informer provided information to
SI Naresh Kumar at the Inter State Cell. Crime Branch, Chanakyapuri,
Delhi, stating that a person named Allalu Din @ Noor, involved in the
smuggling of Cannabis (Ganja) would be coming to Dwarka in a taxi to
supply the contraband. The information was conveyed to senior officers,
and a raiding team was formed accordingly.
2.2 The raiding party, accompanied by the secret informer, reached the
location, where the informer identified the suspect, who was loading plastic
bags into his car. The suspect was apprehended along with the four plastic
bags and the taxi, and was identified as Allalu Din @ Noor.
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2.3 A search of the suspect and the four suspected plastic bags, along
with taxi was conducted, resulting in the recovery of around 100 kg of
Cannabis (Ganja) from the four plastic bags recovered from the possession
of Allalu Din @ Noor. As a result, the impugned FIR was registered
against Allalu Din @ Noor, who was arrested, and his police custody
remand was obtained.
2.4 On 23rd December, 2022, one Sunil @ Sunny Mama was arrested at
the instance of Allalu Din @ Noor, and was identified as a receiver of the
contraband. 5 kg of Ganja was recovered from his house.
2.5 Subsequently, on 31st December, 2022, one Laxman Bachhar @
Lakhan @ Sagar was arrested at the instance of Allalu Din @ Noor. A
recovery of 27 kg of Ganja was made from his house. The said Laxman
Bachhar is stated to be previously involved in 17 cases and is a known BC
(Bad Character) of the Shakarpur area. He was connected to Allalu Din @
Noor through CDR and bank transactions.
2.6 On the same day, the applicant Mithun Shaw was also arrested with a
recovery of 21 kg of Ganja. It is alleged that the applicant had travelled to
Delhi from Murshidabad to deliver 20 kg Ganja to Laxman Bachhar.
2.7 Laxman Bachhar is stated to be the main supplier of Ganja, well-
connected with sources in remote areas of West Bengal, Andhra Pradesh,
and Odisha. He procures illegal Ganja from rural areas and transports it to
Delhi with the help of carriers through public transport.
2.8 Upon the disclosure of Laxman Bachhar, the applicant was arrested
and has been in custody since 31.12.2022.
2.9 It has been informed that the Trial Court has framed charges against
the accused persons including the applicant on 01.04.2025..
3. Ms. Shivani Sharma, learned counsel appearing for the applicant
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submits that the applicant is alleged to have been in possession of 21 kgs of
Ganja, which was seized from the applicant at the residence of one Laxman
Bachhar, who is one of the co-accused persons, from whom 27 kgs of
Ganja was allegedly seized on the same day. The co-accused person,
Laxman Bachhar has already been enlarged on bail vide order of this Court
dated 21.02.2025. She submits that there are about 23 witnesses in all who
are to be examined. She submits that though the charges have been framed
on 01.04.2025, but the examination of all the 23 witnesses will take a long
time to conclude. She submits that the delay in trial is bound to happen on
account of the aforesaid number of witnesses.
4. Learned counsel for the applicant also submits that the applicant has
been in incarceration for a period of 2 years 4 months and 25 days as on
24.05.2025 according to the nominal roll and has not been released on bail
till date. She submits that almost all of the co-accused persons have already
been enlarged on bail including Laxman Bachhar who was released on bail
vide the order dated 21.02.2025. She submits that since the charge-sheet
has been filed and the charges have already been framed by the learned
Trial Court, no purpose would be served in continuing the incarceration of
the applicant.
5. She submits that so far as the rigors of Section 37(1)(b)(i) are
concerned, the opportunity of opposing the bail application has already
been granted to the Prosecution. So far as the rigors of sub-clause (ii) of
Clause (b) of Sub Section (1) of Section 37 is concerned, she submits that
the applicant is a first time offender and question of any apprehension on
release on the ground believing that he is guilty of such an offence or that
he is likely to commit an offence during bail, is very unlikely and therefore,
the rigors of Section 37 would not come in the way of the applicant being
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enlarged on bail. Additionally, she relied upon the judgment of the
Supreme Court in Bishwajit Mondal @ Biswajit Mandal vs. The State of
West Bengal, SLP (Crl.) No.11731/2022 and Mohd. Muslim Abas
Hussain vs. State (NCT of Delhi), (2023) 18 SCC 166, to submit that in
similar circumstances, the accused persons have been enlarged on bail, by
the Apex Court.
6. She also submits that no independent witnesses were sought by the
Prosecution at the time of seizure, nor was any videography carried out
thereby violating the provisions of NDPS Act.
7. Opposing the bail application, Mr. Khanna, learned APP for the State
submits that the applicant was, in fact, arrested on 31.12.2022 and a
quantity of 21 kgs of Ganja was seized from him in accordance with the
provisions of NDPS Act. He submits that the said quantity is a commercial
quantity and the rigors of Section 37 of NDPS will squarely be applicable
to the facts of the case. His contends that the applicant had travelled to
Delhi from Murshidabad to deliver 20 kgs. of Ganja to Laxman Bachhar.
In other words, learned counsel for the applicant submits that the applicant
is a carrier since he had sourced the Ganja from Orissa to Delhi.
8. That apart, learned APP also submits that the CDR record and bank
transactions of the co-accused Laxman Bachhar indicates that Laxman was
in touch with his primary supplier in Andhra Pradesh, West Bengal and
Orissa, for which purposes the applicant herein was being used as carrier.
He submits that keeping in view the aforesaid serious offences against the
applicant, he may not be released on regular bail, particularly on the ground
of parity, and the bail application be dismissed.
9. The record reveals there are about 23 witnesses to be examined
which is likely to take time apart from the fact that the applicant has
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already been incarcerated for a period of 2 years, 4 months and 25 days as
on 24.05.2025, according to the nominal roll.
10. That apart, vide the order dated 21.02.2025, the co-accused person,
from whose residence the applicant has been allegedly arrested and the
Ganja to the extent of 21 kgs have been seized, has already been enlarged
on bail by the said order. So far as the rigors of Section 37 of the Act are
concerned, sub clause (i) of Clause (b) of sub-section 1 of Section 37
already stands complied with and so far as the rigors of sub clause (ii) of
Clause (b) of sub-section (1) of Section 37 is concerned, the judgment of
Supreme Court in Rabi Prakash vs. State of Odisha, 2023 SCC OnLine
SC 1109, clearly enumerated the law in para 4 of the said judgment, which
is extracted hereunder:
“4. As regard to the twin conditions contained in Section 37 of the
NDPS Act, learned counsel for the respondent – State has been duly
heard. Thus, the 1st condition stands complied with. So far as the 2nd
condition re: formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the same may not
be formed at this stage when he has already spent more than three and
a half years in custody. The prolonged incarceration, generally
militates against the most precious fundamental right guaranteed
under Article 21 of the Constitution and in such a situation, the
conditional liberty must override the statutory embargo created under
Section 37(1)(b)(ii) of the NDPS Act.”
11. A perusal of the observation of the Supreme Court fairly indicates
that when it comes to the Constitutional rights guaranteed under Article 21
of the Constitution of India i.e. prolonged incarceration is concerned, the
conditional liberty must override the statutory embargo created under
Section 37 (1)(b) (ii) of the NDPS Act. That apart, right to life and personal
liberty cannot be undermined by unwarranted delay in judicial process,
particularly when such delay is not attributable to the accused/applicant nor
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justified by the Prosecution.
12. In that view of the matter and also taking into consideration the fact
that all the co-accused persons have already been enlarged on bail barring
one Md. Nurul Ialam @ Md. Alluaddin who was granted interim bail and
jumped the liberty and appropriate proceedings are stated to have been
initiated against him, this Court is of the opinion that the applicant has
satisfied the statutory condition for grant of bail.
13. The applicant is therefore, directed to be released on bail on
furnishing a personal bond of Rs.50,000/- with one surety of the like
amount subject to the satisfaction of the Trial Court on the following
conditions:
a. The Applicant shall not indulge in any criminal activity. He
shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case or tamper
with the evidence of the case, in any manner whatsoever.
b. The Applicant shall cooperate in further investigation, as and
when directed by the concerned IO;
c. The Applicant shall under no circumstances leave the country
without the permission of the Trial Court;
d. The Applicant shall provide the address where he would be
residing after his release and shall not change the address without
informing the concerned IO/SHO:
e. The Applicant shall appear before the Trial Court as and when
directed;
f. The Applicant shall, upon his release, give his mobile number
to the concerned IO/SHO and shall keep his mobile phone switched
on at all times;
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g. In the event of there being any FIR/DD entry/complaint
lodged against the Applicant, it would be open to the State to seek
redressal by filing an application seeking cancellation of bail.
h. Since the applicant is ordinarily a resident of West Bengal, the
applicant is directed to report to the concerned P.S. Azeemganj, West
Bengal on every 1st and 15th day of the month.
14. Needless to state that any observation made above are only for the
purposes of granting bail and shall not tantamount to an expression on
merits of the matter.
15. A copy of this order be sent to the Jail Superintendent for
information and necessary compliance.
16. A copy of this order be given dasti under the signature of Court
Master.
17. The bail application is disposed of in the aforesaid terms.
TUSHAR RAO GEDELA, J
(VACATION JUDGE)
JUNE 4, 2025
kct
BAIL APPLN. 1156/2025 Page 7 of 7
This is a digitally signed order.
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