The Single Bench of the Delhi High Court in the case of Kayoom vs State consisting of Justice Talwant Singh while granting bail observed that the petitioner cannot be kept in judicial custody indefinitely only on the strength of his specimen voice sample matching with the questioned voice recorded during intercepted calls, while he was alleged to have been talking to other co-accused who are already on bail.
Facts
A petition for grant of regular bail was filed by the petitioner in case of FIR u/s 21/29 of Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act). On 13.02.2018, at about 12.05 p.m., the information was received that Virender Pal Singh and Ram Nath had brought Heroin from West Bengal and they were coming to supply the same to one Ansar at Sector-24, Rohini. The raiding party was formed and both were arrested with 4 kg Heroin and the above-mentioned FIR was recorded.
Procedural History
In the disclosure statement of Virender Pal Singh and Ram Nath, many persons were named including one Parvej, who was arrested and 1 kg. of Heroin was recovered from his possession. In his disclosure statement, again many persons were named including Aneesh and the present petitioner. Aneesh was arrested and his disclosure statement was recorded in custody. On completion of investigation, charge-sheet was filed and then a supplementary charge-sheet was filed in July 2019. The present petitioner was arrested on 29.09.2020 and his disclosure statement was recorded by the Special Cell while in custody, in the Court premises, on which the petitioner refused to sign. After completion of investigation against the petitioner a supplementary charge-sheet was filed. In March 2021, the petitioner preferred Bail Application before this court and in June 2021, he moved a regular bail application before learned Trial Court. The bail application filed before the Trial Court was dismissed on 24.06.2021 and on 20.07.2021, the bail application filed by the present petitioner was dismissed as withdrawn with liberty to file a fresh petition at an appropriate stage.
Contentions Made
Petitioner: Petitioner used to talk to people only in relation to his work/business and had no concern with transportation/supply of any contraband/drug. He has been implicated solely based on the disclosure statement of co-accused which was recorded when the said co-accused was in police custody and same is inadmissible u/s 25 and 26 of the Evidence Act. There is no material or any independent evidence on record to show that petitioner was involved in the present case and his particulars given in the charge-sheet and the supplementary charge-sheet are incorrect. Other co-accused are already on regular bail. He is not guilty, as contemplated u/s 37 NDPS Act. The trial has been considerably delayed and there is no possibility of commencement and conclusion of trial within a reasonable period. His bail application was dismissed by the learned trial Court without appreciating the law and indisputable facts and circumstances. He is not required for any investigation or further investigation by the investigating agency; he is young and earns his livelihood by running his business of raw coal and woods of bhattha. There is no apprehension that he will abscond if released on bail and he undertakes not to obstruct the smooth progress of the trial.
Respondent: The bail was opposed as the co-accused had disclosed the petitioner’s name. The petitioner made total 33 calls on the mobile number used by the same co-accused. Voice sample of accused has duly matched with the intercepted voice calls. Petitioner moved similar applications before Hon'ble Court, which were also dismissed.
Observations of the Court
The Bench observed that no contraband was recovered from the petitioner, and he has been solely implicated based upon the disclosure statement of co-accused, hit by Section 25 and 26 of the NDPS Act. The proceedings u/s 82 and 83 CrPC commenced against him were doubtful as wrong details regarding him had been furnished in the charge-sheet and the supplementary chargesheet. Also, there was no material or independent evidence on record to show his involvement. It was also observed that he cannot be kept in judicial custody indefinitely only on the strength of his specimen voice sample matching with the questioned voice recorded during intercepted calls, while he was alleged to have been talking to other co-accused who are already on bail.
Judgment
The petitioner was ordered to be released on bail on execution of personal bond of Rs. 50,000/- with one surety of the like amount to the satisfaction of the trial, subject to the following conditions that he:
- shall not, directly, or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
- shall not leave India without the previous permission of the Court.
- shall furnish a mobile number to the IO within one week of his release and always keep the mobile location on.
- shall appear before the trial Court on every date, when the case is listed
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