Delhi High Court – Orders
Munna vs State Of Nct Of Delhi on 7 February, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 4062/2024
MUNNA .....Petitioner
Through: Mr. V.K. Mishra, Mr. Irshad A.
Siddiqui, Mr. Ishan Thakur, Ms. Dipti
Mishra, Ms. Divya Singhvi and
Mr. Arya Kumari, Advocates.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Mukesh Kumar, APP for State
with Mr. Abhishek Gulani, PS-Anand
Parbat.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 07.02.2025
1. The present application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 20231 (erstwhile Section 439 Code of Criminal Procedure,
19732) seeks grant of regular bail in FIR No. 200/2023 under Sections 20, 61
and 85 of the Narcotic Drugs and Psychotropic Substances Act, 19853,
registered at P.S. Anand Parbat.
2. Briefly, the case of the prosecution is as follows:
2.1 On 11th May, 2023, around 7:30PM, a secret informer informed the
1
“BNSS”
2
“CrPC”
3
“NDPS Act‘
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officers deployed for area patrolling near Ramleela Park, Nehru Nagar about
supply of the narcotic substance – Ganja by two men on a scooty. This secret
information was shared with the SHO – P.S. Anand Parbat, who verified the
fact, and conveyed the said information to the ACP – Patel Nagar Sub-
Division. The ACP then directed the SHO to immediately conduct a raid.
2.2 In pursuance of such directions, the raiding team formulated a plan,
under the supervision of SI Jagbir, to apprehend the suspicious scooty on the
spot. Around 8:00PM, at the instance of the secret informer, two men who
were riding a navy blue scooty, were apprehended along with the three bags
they were carrying. The Applicant herein was identified as the person riding
pillion on the scooty, who had two of the three bags containing Ganja placed
between him and the rider. The third bag was on the floorboard of the
scooty. Thereafter, senior police officials were informed of the recovery of
Ganja and notices under Section 50 of the NDPS Act were served upon both
the accused persons.
2.3 Subsequently, ACP – Patel Nagar arrived at the spot and questioned
the two accused persons. In his presence, the SI removed the three bags from
the scooty and inspected them. A total of 18 small packets of about 2 Kgs
each (total weight including the bags being 37.150 Kg) were recovered from
the three bags found in the possession of the accused persons. All of the said
packets were then placed back into the three bags and the said bags were
packed in white cloth (pullandas), sealed and seized vide a seizure memo.
Thereafter the three separate pullandas were taken into police possession,
were counter sealed by the SHO and deposited with the Malkhana. All of the
mandatory conditions under NDPS Act in terms of recovery of narcotic
substance were duly complied with by the officers. The navy blue scooty onBAIL APPLN. 4062/2024 Page 2 of 10
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which the accused persons were travelling, was also seized and it was
discovered that the same was registered under the name of the co-accused
Md. Afar.
2.4 Based on the recovery, FIR No. 200/2023 was registered at P.S.
Anand Parbat under Sections 20, 61 and 85 of the NDPS Act and
subsequently, the two accused persons, including the Applicant, were
arrested.
2.5 During the course of investigation, accused persons, including the
Applicant, disclosed that they had also stored Ganja in the Applicant’s
rented accommodation in Bapa Nagar. Thereafter, police officials went to
the said rented accommodation along with the two accused persons and five
bags containing Ganja were recovered from the said accommodation at their
instance. A total of 35 small packets, weighing about 2 Kgs each were
recovered from the said five bags, with the total weight being 72.100 Kgs
(including the weight of the bags). The said five bags were also packed in
white cloth (pullandas), sealed, and seized vide another seizure memo.
These five pullandas were also taken into police possession, counter sealed
by the SHO and deposited with the Malkhana.
2.6 Thereafter, in compliance with Section 52A of the NDPS Act, an
application for sampling was filed before the Metropolitan Magistrate, Tis
Hazari Courts and accordingly, sampling of the recovered substance was
undertaken. Eight samples were taken from each of the eight pullandas
recovered by the police, along with duplicates and the same were marked,
kept in two brown envelopes and sealed. Thereafter, the eight original
samples were sent to the FSL for examination and report, which opined that
the substance recovered was Ganja. Subsequently, after completion of theBAIL APPLN. 4062/2024 Page 3 of 10
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investigation, a chargesheet has been filed in the present matter before the
Trial Court. Charges have also been framed against the accused persons,
including the Applicant on 14th May, 2024 under Sections 20(c), 25 and 29
of the NDPS Act.
3. Mr. V.K. Mishra, Counsel for the Applicant, seeks grant of bail on the
following grounds:
3.1 The Applicant has been falsely implicated in the present case, and the
alleged contraband was planted on him. No recovery was affected from the
Applicant at the alleged spot where he was apprehended. The Applicant has
no prior criminal record or involvement in any criminal cases till date.
3.2 Further, the notice under Section 50 of NDPS Act was not served on
the Applicant, in accordance with law. Nowhere has it been written that he
was informed of his rights and that he has understood the same. The notice
only shows that he waived off his rights to be searched in the presence of a
Magistrate. It is a well settled position of law that there is distinction
between informing the accused of the ‘option’ available before him, as
against informing him about his ‘right’ under Section 50 of the NDPS Act.
Reliance in this regard is placed on the judgments of the Supreme Court in
Ashok Kumar Sharma v. State of Rajasthan4, State of Punjab v. Baldev
Singh5, Vijaysingh Chandubha Jadeja v. State of Gujarat6 and Arif Khan
v. State of Uttarakhand7.
3.3 In terms of the search conducted on the Applicant’s rented premises
in Bapa Nagar, the same was done at night, without prior recording of
4
(2013) 2 SCC 67
5
(1999) 6 SCC 172
6
(2011) 1 SCC 609
7
(2018) 18 SCC 380
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information by the IO, in derogation of Section 42(1) of the NDPS Act.
Further, there was no warrant or authorization from a gazetted Officer/ACP
before the search was conducted. It is only afterwards that the ACP was
informed about the same. Moreover, the weighing of the substances
recovered from the rented accommodation of the Applicant was not done in
the presence of the ACP.
3.4 Pertinently, no independent/public witness was present during the
search of the rented accommodation of the Applicant and even the owner of
the premises, whose statement has been recorded under Section 161 of
CrPC, was not present during the search. The search was only conducted on
the alleged disclosure statements. Moreover, no search list was prepared, nor
was the FSL from filed by the IO immediately after the search. This
indicates gross violation of the procedure laid down under the NDPS Act.
3.5 The Applicant is a family man, having a wife and four minor children.
He is the sole earner of his family and without him, there is no one left to
look after his family. The Applicant has been in custody since 11th May,
2023 – i.e., for over 1 year and 8 months. He was earlier released on interim
bail by the Trial Court vide order dated 22nd December, 2023 for a period of
7 days, after which the Applicant duly surrendered himself before the Jail
Authorities without misusing the liberty granted to him. As of now, the
prosecution has cited more than 15 witnesses to be examined during trial,
out of which only two formal witnesses have been examined. Therefore, it is
clear that the trial is going to take a long time to get completed and the
Applicant ought not to be indefinitely kept behind bars.
4. On the other hand, Mr. Mukesh Kumar, APP for the State strongly
opposes the present bail application. He submits that since the quantity
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recovered from the Applicant is 72.100 kg of Ganja, it falls within
commercial quantity and as such, the Applicant must satisfy the twin
condition under Section 37 of the NDPS Act. He submits that the ground of
the alleged violation of Section 50 of NDPS Act is immaterial for the
purpose of the consideration of grant of bail in light of settled position of
law on this matter. He further submits that there is sufficient material on
record to implicate the Applicant in the present case, including his
disclosure statement which has directly resulted in the recovery of 72.100
Kgs of Ganja from his rented accommodation. Considering the gravity of
the crime, the Court ought not to grant bail to the Applicant.
5. The Court has carefully considered the submissions advanced by both
sides. It is well established through catena of judgments by the Supreme
Court that the object of granting bail is neither punitive nor preventative.
The primary aim sought to be achieved by bail is to secure the attendance of
the accused person at the trial8. However, since the recovery of contraband
of 72.1 Kgs of Ganja clearly falls within the prescribed commercial quantity,
the rigours of Section 37 of the NDPS Act are squarely attracted. The
Applicant must meet the twin conditions under Section 37(1)(b) of the Act
for grant of bail, namely: (i) the Court must be satisfied that there are
reasonable grounds to believe the accused is not guilty of the alleged
offence, and (ii) the accused is not likely to commit any offence while on
bail.
6. In terms of the first condition, the Applicant has argued that the
procedure of search and seizure as contemplated under the NDPS Act has
8
See also: Sanjay Chandra v. CBI, (2012) 1 SCC 40; Satender Kumar Antil v. Central Bureau of
Investigation, (2022) 10 SCC 51.
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not been followed by the police, when they went to search the rented
accommodation of the Applicant. It is further noted that even the owner of
the premises was not present at the time of the search and he has not
disclosed anything incriminating towards the Applicant in his statement
under Section 161 of CrPC. Further, there is merit in the contention of the
Applicant that, there were no independent witnesses present either at the
time of recovery of the substance from the scooter when the Applicant was
first apprehended or at the time of the search of his rented accommodation.
Even though the impact of these procedural lapses would have to established
during trial, after the parties have lead evidence, however, in the prima facie
opinion of the Court, these lapses weigh in the favour of the Applicant at
this stage.
7. As regards the second condition under Section 37(1)(b) of the NDPS
Act, it is noted that this Applicant has clear criminal antecedents and has not
been involved in any previous criminal activity. He is a first-time offender
and on an earlier occasion, when the Applicant was granted interim bail by
the Trial Court, he did not misuse the liberty granted to him and duly
surrendered to the Jail superintendent at the expiry of his bail period. As
such, in the opinion of the Court, The Applicant is not likely to engage in
criminal activity while on bail.
8. It also bears on the mind of the Court that the chargesheet was filed
against the Applicant on 25th July, 2023 and charges were framed against
him on 14th May, 2024. Although, the trial is progressing, as of now, out of
the 16 witnesses cited by the prosecution, only 2 witnesses have been
examined. Therefore, conclusion of trial is likely to take a substantial
amount of time. The Applicant has been in custody for over 1 year and 8
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months. In such circumstances, the Court must strike a balance between the
fundamental right to a speedy trial, an integral aspect of the right to life and
liberty under Article 21 of the Constitution of India, and the stringent
requirements of Section 37 of the NDPS Act. The right to life and personal
liberty cannot be undermined by unwarranted delays in the judicial process,
particularly when such delays are neither attributable to the accused nor
adequately justified by the prosecution with compelling reasons. While the
rigours of Section 37 must be meticulously applied, they cannot override the
constitutional mandate for timely justice. Reliance in this regard, is placed
on the judgements of the Supreme Court in Mahmood Kurdeya v. NCB9,
Rabi Prakash v. State of Odisha10, Dheeraj Kumar Shukla v. State of
U.P.11, Man Mandal & Anr. v. State of West Bengal12, Badsha Sk. v. State
of West Bengal13.
9. Moreover, it is noticed that almost all of the witnesses cited by the
prosecution are police officers/government officials, barring only the owner
of the accommodation rented by the Applicant. Thus, the possibility of the
Applicant influencing the witnesses in the present case is extremely low.
10. In light of the foregoing, the Applicant is directed to be released on
bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties
of the like amount, subject to the satisfaction of the learned Trial Court, on
the following conditions:
a. The Applicant shall cooperate in any further investigation as and
when directed by the concerned IO;
9
2022(3) RCR (Criminal) 906
10
2023 SCC OnLine SC 1109
11
2023 SCC OnLine SC 918
12
2023 SCC OnLIne SC 1868BAIL APPLN. 4062/2024 Page 8 of 10
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b. The Applicant 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;
c. The Applicant shall under no circumstance leave the country without
the permission of the learned Trial Court;
d. The Applicant shall appear before the Trial Court as and when
directed;
e. 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;
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.
g. The Applicant shall report to the concerned IO on the Fourth Friday
of every month at 4:00PM and shall not be kept waiting for more than one
hour for this purpose.
11. 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.
12. It is clarified that any observations made in the present order are for
the purpose of deciding the present bail application and should not influence
the outcome of the trial and should also not be taken as an expression of
opinion on the merits of the case.
13
2023 SCC OnLine SC 1867
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13. The bail application is allowed in the afore-mentioned terms.
SANJEEV NARULA, J
FEBRUARY 7, 2025
nk
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