Delhi High Court
Monika vs State Govt.Of Nct Of Delhi on 27 January, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 27th January, 2025
+ BAIL APPLN. 4720/2024
MONIKA ..... Petitioner
Through: Mr. Arvind Kumar, Mr. Mritunjay
Kumar Singh, Mr. Abhay Kumar
Mishra, Mr. Ankit Kumar Vats & Mr.
Subit Singh, Advocates.
versus
STATE GOVT.OF NCT OF DELHI ..... Respondent
Through: Ms. Meenakshi Dahiya, APP for
State.
S.I. Bijender Singh & HC Lokender
Kumar, Anti Narcotics Cell, Dwarka,
Delhi.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. The present Bail Petition under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 („B.N.S.S.‟ hereinafter) read with Section 439 of
the Code of Criminal Procedure, 1973 („Cr.P.C.‟ hereinafter) has been filed
on behalf of the Petitioner seeking Regular Bail in FIR No. 112/2023 under
Sections 8/21/29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 ( “NDPS Act, 1985” hereinafter) registered at Police Station Dwarka
North, Delhi.
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By:VIKAS ARORA
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2. The Applicant states that the case of the State is that based on a secret
information received on 07.02.2023, the prime accused Ruby was arrested
who in her Disclosure Statement, gave the name of the Petitioner as also a
person who sells drugs from her residence. Pursuant thereto, the accused
Monica was arrested near House No. RZ-99, Shiva Enclave, Vikash Nagar,
Uttam Nagar on 09.02.2023 and the alleged recovery of 265 gms. Heroine
was effected from her.
3. The grounds for seeking bail are that insofar as offence under Section
29 of the NDPS Act, 1985 for abetment and/or criminal conspiracy is
concerned, no material has been spelled out in the Chargesheet. The
Prosecution has merely made up some story about some alleged co-accused
persons namely, Ruby whose details have not been incorporated in the
Chargesheet making the entire prosecution story baseless and vague. Also,
the prosecution has also failed to establish the source of supply of drugs to
the Petitioner.
4. Moreover, the alleged recovery has not been made by following the
due process of law. There is no independent witness to the alleged search
and seizure. On such vague and bald allegations, the personal liberty of the
individual cannot be curtailed, contrary to the mandate of the Article 21 of
the Constitution of India.
5. The prosecution has completely relied on the confessional statement
of the Petitioner which is inadmissible piece of evidence. Reference has
been made to Indra Dalal vs. State of Haryana, Criminal Appeal No.
1261/2009, wherein the Apex Court observed that where a confession is
extorted by the Police Officials by practicing oppression and torture or
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inducement, then it is inadmissible in evidence in terms of Section 25 of the
Indian Evidence Act, 1872.
6. Similar observations have been made in Gopal Sah vs. State of Bihar,
(2008) 17 SCC 128, that an extra-judicial confession on the face of it, is a
weak piece of evidence and the Courts are reluctant in the absence of chain
of cogent circumstances, to rely on it for the purpose of recording a
conviction.
7. Reliance has been placed on the decision in Kashmira Singh vs. The
State of Madhya Pradesh, AIR 1952 SC 159 and to the decision of the Privy
Council in Bhuboni Sahu vs. The King, 76 Indian Appeals 147, wherein it
was observed that the proper way to approach a case involving confession of
a co-accused is first to marshal the evidence against the accused excluding
the confession altogether from consideration and see whether, if it is
believed, a conviction could safely be based on it.
8. Similar observations have been made by the Apex Court in Pancho
vs. State of Haryana, Criminal Appeal No. 1050/2005.
9. It is argued that the confession of a co-accused against the Petitioner
is a weak piece of evidence and in the absence of any other independent
cogent evidence, cannot be relied upon by the prosecution to establish the
involvement of the Petitioner in the alleged crime.
10. The second ground which has been taken for seeking Regular Bail is
that the recovery of contraband has been effected contrary to the provisions
of Section 50 of NDPS Act, 1985, thereby vitiating the search and seizure.
11. Reliance has been placed on Bail Appl. No. 1156/2023 Aabid Khan vs.
State Govt of NCT of Delhi, decided by the Co-ordinate Bench of this Court
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wherein it was observed that it is an imperative requirement on the part of
the Officer intending to search, to inform the person to be searched, of his
right to get the search done in the presence of a Gazetted Officer or a
Magistrate as the provision of Section 50 of NDPS Act, 1985 is mandatory.
12. The Apex Court in State of Punjab vs. Balbir Singh, (1994) 3 SCC
299 while considering whether the conditions laid down in Section 50 of
NDPS Act, 1985 of getting the search conducted by the empowered or the
authorised person, concluded that it is a valuable right given to a person
since the search would impart much more authenticity and credibility to the
proceedings while equally providing an important safeguard to the accused.
13. The 2-Judge Bench of the Apex Court in State of Rajasthan vs.
Parmanand and Another, (2014) 5 SCC 345 decided on 28.02.2014 referred
to the Constitution Bench judgment of the Supreme Court in Baldev Singh‟s
case, State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350, Dilip vs. State of
M.P., (supra), Union of India vs. Shah Alam, (2009) 16 SCC 644, wherein it
has been held that the failure to conduct the search before a Gazetted Officer
or a Magistrate, may not vitiate the trial, but would render the recovery of
the illicit article suspect and vitiate the conviction and sentence of an
accused.
14. Similar observations have been made in Arif Khan @ Agha Khan vs.
State of Uttarakhand, AIR 2018 SC 2123, Ali Hussain Seikh vs. Narcotics
Control Bureau, C.R.A. 744/2019 (CRAN 3/2021), State of Delhi vs. Ram
Avtar @ Rama, (2011) (3) JCC 146, Mohd. Rahis Khan vs. State, (2014) (1)
LRC 363 (Del), and Emeka Emmanuel vs. State¸ decided by the Co-ordinate
Bench of this Court vide BAIL APPLN. 1231/2022.
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15. It is further submitted in the Petition that there is non-compliance of
the statutory provisions of NDPS Act, 1985 by the Police Officials and
therefore, twin conditions under Section 37 of the NDPS Act, 1985 are not
satisfied, entitling the Petitioner to be enlarged on bail.
16. Reliance has been placed on Ms. Betty Rame vs. Narcotics Control
Bureau, decided by the Coordinate Bench of this Court vide CRL.M.(BAIL)
1324/2022 in CRL.A. 338/2021, wherein the bail was granted to the accused
on the ground of non-compliance of statutory provisions of NDPS Act,
1985. It was held that non-compliance necessarily imparts element of doubt,
moreover, a reasonable doubt. This, therefore, would segway into an issue of
proving guilt, considering that the guilt has to be proved beyond reasonable
doubt. It would, therefore, not be enough to contend that such issues of
non-compliance were to be considered at the time of trial. However, a
fortiori at the stage of granting bail, it would be even more important to
consider this possibility, even if it is just a possibility.
17. In the end, it is contended that the Petitioner is in prolonged
incarceration and there is delay in the trial, entitling the Petitioner to bail, for
which reliance has been placed on the decision in Union of India vs. K.A.
Najeeb, (2021) 3 SCC 713, wherein while considering the bail in the context
of Unlawful Activities Prevention Act, 1967 („UAPA‟), it was held that when
the accused is in jail for extended period of time with little possibility of
early completion of trial, the constitutionality of harsh conditions for bail
under special enactments can be justified primarily on the touchstone of
speedy trial to ensure protection of innocent civilians.
18. In numerous judgments, it has been held that owing to the
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practicalities of real life to secure an effective trial and ameliorate the risk to
society in case a potential criminal is left at large pending trial, the Courts
are tasked with deciding whether an individual ought to be released pending
trial or not. Once it is obvious that a timely Trial would not be possible and
the accused has suffered incarceration for a significant period of time, the
Courts would ordinarily be obligated to enlarge them on bail.
19. Similar observations have been made in Rabi Prakash vs. State of
Odisha, 2023 SCC OnLine SC 1109.
20. Further, reliance is placed on Nitish Adhikary @ Bapan v. State of
West Bengal 2022 SCC OnLine SC 2068; Vishwajeet Singh v. State of NCT
of Delhi 2024 SCC OnLine Del 1284; Kashif v. Narcotics Control Bureau
Bail Appln. 253.2023 dated 18.05.2023; Mohd. Ibrahim v. State of NCT of
Delhi 2012:DHC:7073; Mahfooz v. NCB 2024:DHC:6917; Pankaj
@Pankaj Vaid @Amit@Sanju Baba v. State 2024:DHC:7679; Vikas
Kashyap v. State of NCT of Delhi 2024:DHC:5163; Govind v. State Govt. of
NCT of Delhi 2024:DHC:7527; Deen Mohammad Alias Bhola v. State of
NCT of Delhi 2024:DHC:6618; Sameer Beg v. State of NCT Bail Appln.
3704/2024; and Nagesh Sharma v. State (N.C.T. of Delhi) 2023:DHC:2180
wherein bail has been granted by various Courts under Section 37 of NDPS,
1985.
21. Furthermore, the investigations are complete and further custody of
the Petitioner is not required. She undertakes to abide by any terms that may
be imposed. It is, therefore, prayed that the Petitioner may be granted
Regular Bail in the given facts and circumstances of the case.
22. The Status Report has been filed on behalf of the State wherein it is
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submitted that on 07.02.2023 on the basis of information received through a
secret informer, one woman Ruby was apprehended from the front of her
House bearing No. B-36, J.J. Colony, Pocket-3, Sector-16, Dwarka, Delhi
and was found in possession of 30 gm. of Heroine. She, in her Disclosure
Statement, revealed the involvement of Petitioner and led to her
apprehension.
23. The Notice under Section 50 of NDPS Act, 1985 was duly given to
Applicant, but she refused to get her search done in front of the Gazetted
Officer or Magistrate. On her search, one white colour polythene was
recovered from her bag which she was holding tightly in her right hand. The
substance on checking, was found to be Heroine Drug and the weight was
found to be 265 gms. The recovered Heroine was seized and sealed with the
seal of „DK‟. The Petitioner thus, was arrested after being informed the
grounds of arrest and produced before the learned Trial Court on
10.02.2023.
24. It is further submitted that the due procedures as detailed in Section
50 of NDPS Act, 1985 were followed. The independent witnesses were
requested to join the raiding team, but they refused due to the various
exigencies.
25. An Application under Section 52A of NDPS Act, 1985 for drawing
samples recovered from the Petitioner was moved before the learned Trial
Court on 10.02.2023 and the samples were drawn on 13.02.2023 as
permitted by the learned Trial Court.
26. It is further submitted that the FSL Report has been received, wherein
the samples drawn from the Heroine Drug recovered from the Petitioner
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were found to contain „Diacetylmorphine‟, „Acetaminophen‟, „Caffeine‟,
„Dextromethorphan‟, „Acetylcodeine‟, and „Monoacetymorphine‟. The FSL
Report has been submitted before the learned Trial Court along with the
Supplementary Chargesheet, on 25.09.2023.
27. It is also submitted that as per SCRB Report, the Petitioner is
involved in 13 Cases in total, out of which 7 cases are under Punjab Excise
Act, 1914, 5 cases are under Delhi Excise Act, 2009 and the present case
under the NDPS Act, 1985.
28. There are total 28 public witnesses, out of which three witnesses have
already been examined.
29. Therefore, the present Bail Petition is opposed on behalf of the State.
30. Submissions heard and record perused.
31. The parameters for grant of bail to an accused under the NDPS Act,
1985 have been provided in various cases by the Hon’ble Supreme Court.
The Supreme Court in Collector of Customs v. Ahmadalieva Nodira, (2004)
3 SCC 549 has observed as under:
“6. As observed by this Court in Union of India v. Thamisharasi, (1995)
4 SCC 190, clause (b) of subsection (1) of Section 37 imposes limitations
on granting of bail in addition to those provided under the Code. The
two limitations are : (1) an opportunity to the Public Prosecutor to
oppose the bail application, and (2) satisfaction of the court that there
are reasonable grounds for believing that the accused is not guilty of
such offence and that he is not likely to commit any offence while on
bail.
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits. Apart from the grant of opportunity to
the Public Prosecutor, the other twin conditions which really have
relevance so far as the present accused-respondent is concerned, are :
the satisfaction of the court that there are reasonable grounds for
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believing that the accused is not guilty of the alleged offence and that
he is not likely to commit any offence while on bail. The conditions are
cumulative and not alternative. The satisfaction contemplated
regarding the accused being not guilty has to be based on reasonable
grounds. The expression “reasonable grounds” means something more
than prima facie grounds. It contemplates substantial probable causes
for believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence of
such facts and circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged offence…”
32.Further, in State of Kerala v. Rajesh, (2020) 12 SCC 122, the Hon’ble
Supreme Court while discussing the expression „reasonable grounds‟ has
observed as below:
“20. The expression “reasonable grounds” means something more
than prima facie grounds. It contemplates substantial probable causes
for believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence of
such facts and circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to have
completely overlooked the underlying object of Section 37 that in
addition to the limitations provided under the CrPC, or any other law
for the time being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is indeed uncalled
for.”
33. As per the case of the Prosecution, the Applicant was found in
possession of 265 gms. of Heroin which is a commercial quantity, thereby
mandating the satisfaction of the stringent twin conditions under Section 37
of the NDPS Act, 1985which are necessarily required to be satisfied.
34. The first contention of the Applicant is that the case of the
Prosecution rests on the Disclosure Statement of co-accused Ruby, which is
a is a weak piece of evidence. The proposition of law in this regard is well
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settled and needs no reiteration, but it is not a case where a confession of the
co-accused is the only cogent evidence against the Petitioner; rather it only
led the raiding team to the Petitioner and on her search, 265 gms. of Heroine
has been recovered from a white polythene in her hand bag, which she was
clutching tightly in her right hand.
35. The strenuous arguments on the aspects of confession of a co-accused
is, therefore, not relevant at this stage. What is required to be seen is the
recovery of Heroine from the Petitioner and whether due procedures as
detailed in NDPS Act, 1985 were followed by the Police.
36. The main plank of procedural deficiency agitated on behalf of the
Applicant is the non-compliance of Section 50 of the Act. State has
contended that the Notice under Section 50 of NDPS Act, 1985 was duly
served upon the accused-Petitioner, though she refused to get her search
conducted in the presence of a Gazetted Officer/Magistrate.
37. Whether there was due compliance of Section 50 of NDPS Act, 1985
and whether it is the accused-Petitioner who refused to get her search done
before the Magistrate or a Gazetted Officer and whether the non-compliance
was so blatant as to render the recovery of illicit article suspect and vitiate
the entire proceedings, is a matter of trial.
38. In the Case of Baldev Singh (supra) and Arif Khan @ Aga Khan,
(supra) also, it has been held that the failure to get the search conducted by a
Gazetted Officer or a Magistrate, may not vitiate the search and seizure
itself, but is a matter of evidence to be appreciated at the time of convicting
and sentencing the accused person. At this stage of considering the Bail,
when the truthfulness of witnesses in regard to the procedure followed in
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effecting recovery, is yet to be tested by way of evidence, there can be no
conclusion of blatant non-compliance of Section 50 of the Act whereby
making the alleged recovery of the drug itself doubtful.
39. Therefore, it may be observed that the first condition of Twin Test, to
prove the circumstances establishing her innocence, is prima facie not
satisfied to entitle the Applicant for Bail.
40. The second aspect to be considered to meet the threshold of Section
37 of NDPS Act, 1985, is that she is likely to commit the offence, if released
on Bail. As per the Petitioner‟s Nominal Roll, she has been previously
involved in five FIRs under the Delhi Excise Act, 2009 including one FIR
under Sections 186/353/332/224/34 of the Indian Penal Code, 1860.
41. However, along with the Status Report, Crime Report from Crime
Criminal Information System has also been annexed which shows previous
involvement of the Petitioner in as many as 12 Cases, out of which 7 cases
are under Punjab Excise Act, 1914, and 5 cases are under Delhi Excise Act,
2009.
42. Considering her antecedents and her previous involvement in 12
cases, many of which are under the Excise Act, it cannot be concluded that
she is not likely to commit similar offence in future, if released on Bail.
43. The Applicant fails to meet the twin conditions of Section 37 of
NDPS Act, 1985, disentitling her to bail, at this stage.
44. Further, insofar as the delay in trial and long incarceration of the
Petitioner is concerned, it is pertinent to observe that she is in judicial
custody from 09.02.2023 and the Charges have already been framed and the
witnesses are being recorded. The assertion of inordinate delay and
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prolonged incarceration, it also not tenable in the circumstances of this case.
45. It is not a case where there is an inordinate delay in the trial which in
itself could have been a ground for bail, independent of requirements of
Section 37 of NDPS Act, 1985.
46. The judgements relied upon by the Applicant in Vishwajeet Singh
(supra); Kashif v. Narcotics Control Bureau (supra); Mohd. Ibrahim (supra);
Mahfooz v. NCB (supra); Vikas Kashyap v. State of NCT of Delhi (supra);
Govind v. State Govt. of NCT of Delhi (supra); Deen Mohammad Alias
Bhola v. State of NCT of Delhi (supra) and Nagesh Sharma v. State (N.C.T.
of Delhi) (supra) do not aid the case of the Applicant as they pertain to
substances other than heroine and are therefore, distinguishable on facts.
47. Further, Nitish Adhikary @ Bapan v. State of West Bengal (supra);
Pankaj @Pankaj Vaid (supra) and Sameer Beg v. State of NCT Bail Appln.
3704/2024 are distinguishable on facts in light of the role and criminal
antecedents of the Applicant.
48. Since the threshold of Section 37 of NDPS Act, 1985 has not been
met, no bail can be granted to the Petitioner at this stage.
49. Accordingly, in the light of aforesaid discussion, the Bail Petition is
hereby, dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 27, 2025
S.Sharma
Signature Not Verified
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