Sanjay Kumar vs State Thru. Ncb
2012 Latest Caselaw 4131 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Bail Appn. No.1305/2011

                                           Date of Decision : 13.07.2012
SANJAY KUMAR                            ......             Petitioner
                                     Through:   Mr. R.K. Sharma, Adv.
                                       Versus
STATE THRU. NCB                           ......         Respondent
                                     Through:   Mr. P.C. Aggarwal, Adv.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is an application for the grant of regular bail by the accused,

Sanjay Kumar in respect of an offence under Section 8(C)/20/29

of the NDPS Act, 1985.

2. Briefly stated, the facts of the case are as under:-

3. On 22.12.2010, at 1300 hrs., a secret information was received

by the complainant through some reliable source that four

persons from Bihar are travelling in a Maruti Van No.UP-41-8741

and they are carrying a huge quantity of Hashish kept in the

Maruti Van and they are going to deliver the consignment of

hashish to two persons hailing from Haryana and they would

come to take the delivery of the consignment on a motorcycle

bearing registration No.HR-31-D-1282 at Railway Station,

Julana, Haryana on 23.12.2010 at 8:00 A.M. and if a search is

conducted, a huge quantity of hashish can be recovered. The

said information was reduced into writing and was put before

Shri R.K. Yadav, Superintendent, who directed the complainant

to constitute a team and take action according to law.

4. Based on the said information, the complainant, alongwith the

other officers of the NCB, reached Rohtak, Haryana at

11:45 P.M.. The team halted at Rohtak for the intervening night

of 22-23 December, 2010. On 23.12.2010, at about 7:00 a.m.,

the team reached the Railway Station, Julana, Haryana and

mounted surveillance in the area. The team remained at that

place till 11:00 A.M., but no vehicle/person as per the

information appeared at the spot. The team returned to Rohtak.

On 24.12.2010, at 3:00 P.M., the complainant received further

information that the Maruti Van bearing registration No.UP-41-

8741, which was to deliver the consignment of hashish at Julana,

Rohtak on 23.12.2010, now will deliver the same consignment

near Metro Station, Udyog Vihar, New Delhi at 6:00 P.M. on

24.12.2010. The information was reduced into writing and the

same was put up before Shri Y.R. Yadav, Superintendent on the

spot, who directed the complainant for action. Thereafter, a

team of the NCB officials left Rohtak at 3:15 P.M. and reached

Udyog Vihar Metro Station, New Delhi at about 5:45 P.M., where

another team of DZU was already present. On reaching at the

point, the complainant approached some local personal and

introduced himself after showing his identity card and the

purpose of visit and requested them to join NCB team as

independent witnesses for the search/seizure proceedings. On

his request, two persons, namely, Afsar and Ms. Seema Devi

voluntarily agreed to join the NCB team for the search and

seizure proceedings as panch witnesses and remained present

for further proceedings. The complainant then introduced his

team to the panch witnesses and asked for their personal search

which they declined.

5. At 5:50 P.M., when the team was stationed in the area, one

Maruti Van bearing registration No.UP-41-8741, with four

persons, was seen by the NCB team, which was halted on the

road side facing towards Punjabi Bagh at Metro Station Udyog

Vihar, New Delhi. After some time, one motorcycle bearing

registration No.HR-31-D-1282 came with two persons and

stopped near the said Maruti Van. Both these persons got down

from the motorcycle and started having a conversation with the

persons sitting inside the Maruti Van. At this moment, the NCB

team intercepted the van and the persons on the motorcycle. On

being asked by the NCB officials, all these accused persons

disclosed their identity and the NCB officials also showed their

identity.

6. A notice under Section 50 of the NDPS Act was issued to all the

accused persons, whereby they were to be subjected to about

their personal search and the search of their vehicle to be

conducted before the learned Magistrate or the Gazetted Officer,

to which the accused persons declined and replied, in writing, on

their respective notices that they do not want their presence

before the learned Magistrate or the Gazetted Officer and further

that they have no objection if the search of their own and their

vehicle could be conducted by the NCB officials. They signed on

the notices as a token of having seen and understood the same

and allowed the officials to carry out their personal search as

well as the search of their vehicle. On the examination of the

driver seat, the co-driver seat and the rear main seat of the

Maruti Van, 66 polythene packets of some suspicious substance

were found, which, on being opened and on being tested, was

detected hashish. After recovery of the entire substance, the

same was sealed with seal of NCB.

7. I have heard the learned counsel for the petitioner as well as the

learned counsel for the NCB and have also gone through the

records.

8. The main submission of the learned counsel is that the petitioner

deserves to be enlarged on bail on the ground of parity because

the co-accused, Ramkesh was allegedly the pillion rider of the

motorcycle. According to the Prosecution, the accused, who had

gone to take the delivery of contraband, has already been

enlarged on bail by the Court of Sessions vide order dated

9.8.2011. It has further been stated that so far as the present

petitioner is concerned, nothing was recovered from him and,

therefore, he also deserves to be enlarged on bail.

9. The learned counsel for the NCB has disputed this fact that the

case of the petitioner can be decided on the basis of parity of

bail having been granted to the co-accused, Ramkesh. In this

regard, the attention of the Court has been drawn to the

distinction made by Ms. Anu Grover Baliga, the learned Special

Judge : NPDS, while denying the bail to the present petitioner.

It has been observed by the learned Special Judge that the

present petitioner had been named by all the four co-accused

persons, namely, Lallan Kumar, Rakesh Kumar, Dharmender

Kumar and Sunil Gupta in their voluntary statement recorded

under Section 67 of the NDPS Act to the effect that the accused,

Sanjay, was to take the delivery of the contraband. It may be

pertinent to mention here that these four co-accused persons,

were the occupants of the Maruti Vehicle bearing the

Registration No.HR-31D-1282 which was found to be containing

66 packets of hashish hidden in it. The secret information, which

was received by the officials of the NCB, was that these 66

packets will be delivered to the present petitioner at a specified

spot wherefrom all the accused persons were arrested on the

basis of a trap. This fact is, prima facie, corroborated by the

statement of Sanjay also which was recorded under Section 67

of the NDPS Act, wherein he had admitted that it was he who

was to receive the consignment. He has also exculpated, so far

as Ramkesh is concerned, by saying that he had only

accompanied him to take the delivery of the contraband.

Therefore, these two facts clearly show that so far as the

petitioner is concerned, he was a part of gang which was dealing

with the trading of contraband and, therefore, his case cannot be

equated with that of Ramkesh so as to give the petitioner the

benefit of bail.

10. One of the conditions, which have been specified under Section

37 of the NDPS Act while enlarging the petitioner on bail is that

the Court must be prima facie of the view that the accused may

not be involved in the commission of the offence.

11. In the circumstances which have been explained above, I am

prima facie not able to form an opinion at this stage that the

petitioner was not involved in the commission of the offence

pertaining to the trading of contraband for which he is facing the

trial. Therefore, I feel that this is not a fit case for granting bail

to the present petitioner. The judgments of this Court in Bail

Appn. No.340/2011 titled Charan Singh -vs- State of Delhi

decided on 25.4.2011 and 631/2011 titled Saurabh Yadav -vs-

State NCT of Delhi decided on 2.6.2011, which have been relied

upon by the learned counsel for the petitioner, have no

application to the facts of the present case because these two

cases are under Section 302 IPC and not the NDPS Act. In

addition to this, for the grant of bail, very stringent conditions

have been put by the statue in case of NDPS and unless and

until the same are not satisfied, the bail cannot be granted. I

feel that in the instant case neither these conditions, as are

enshrined under Section 37 of the NDPS Act, are satisfied nor

any parity can be drawn between the cases of Ramkesh and the

present petitioner.

12. Accordingly, the bail application is dismissed.

V.K. SHALI,J July 13, 2012 tp