Mahesh vs State (Nct Delhi) & Anr
2019 Latest Caselaw 206 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Order: January 11, 2019

+      BAIL APPLN. 789/2018
       MAHESH                                            ..... Petitioner
                            Through:   Ms. Sonia Mathur, Senior
                                       Advocate with Mr. Sushil Dueby,
                                       Ms. Prachi Aggarwal, Mr. Umang
                                       Verma & Ms. Divya Nair,
                                       Advocates
                            Versus

       STATE (NCT DELHI) & ANR                    .....Respondents
                     Through: Ms. Neelam Sharma, Additional
                               Public Prosecutor for respondent-
                               State
                               Mr. B.S. Arora, Advocate for
                               respondent No.2-NCB
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                            ORDER

Petitioner seeks regular bail in SC/254/2017, under Sections 21(B) & 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth referred to as the "NDPS Act") on the ground of parity with co-accused Vijay Pal, who has been granted bail vide order of 14th March, 2018 (Annexure-2). On the basis of secret information, a parcel said to contain narcotic drug destined to Australia was intercepted and on its search, it was found that it contained 360 gms of methamphetamine. The said parcel was booked by the co-accused Vijay Pal, to whom notice

under Section 67 of the NDPS Act was issued and his statement was recorded and thereafter, statements of Roshan Kumar Singh, Varun, Manzoor Ansari as well as of petitioner were also recorded by the Investigating Officer. On perusal of aforesaid statements, it transpires that the said parcel was given by one Frank to petitioner for packing and booking and for this purpose, ₹4,500/- were given to petitioner, who after packing the parcel had given ₹3,200/- to co-accused Manzoor Ali for booking it. The allegation against petitioner was that he had actively connived with co-accused and had abetted the offence in question.

Learned senior counsel for petitioner submits that petitioner had no knowledge about the contents of the parcel, as it is evident from the charge-sheet that the drug was tactfully concealed in water filter. It is further submitted that the Narcotic Control Bureau (NCB) has failed to explain non-inclusion of other co-accused in the chain of events and has deliberately avoided to get their CDR on record. It is thus submitted that petitioner has been falsely implicated and the case of petitioner is on better footing than the case of co-accused Vijay Pal, who has already been granted bail by order of 14th March, 2018 (Annexure-2).

Learned counsel for respondent-NCB vehemently opposes this application by submitting that as per Section 35 of NDPS Act, there is presumption of culpable mental state and there are various call records to show connivance between petitioner and Frank and so, in view of bar of Section 35 of NDPS Act, this application deserves dismissal.

In rebuttal, learned senior counsel for petitioner has drawn attention of this Court to Supreme Court's decision in Ranjitsing

Brahmajeetsing Sharma Vs. State of Maharashtra and Anr. (2005) 5 SCC 294 to submit that provisions para materia to Section 37 of NDPS Act have been duly considered, to reiterate that duty of the Court at this stage is not to weigh the evidence meticulously but to prima facie observe on broad probabilities of the case and that it is not possible to predict the future conduct of accused and that in the instant case, there is no previous involvement of petitioner to justify denial of bail to him.

Upon hearing and on perusal of FIR of this case, status report and the decision cited, I find that while considering applicability of Section 37 of NDPS Act, broad probabilities of the case is to be seen. It is not the case of respondent-NCB that petitioner at any point of time had opened the parcel before booking it, whereas co-accused Vijay Pal had infact opened the parcel before sending it by courier. Since co-accused Vijay Pal has already been granted bail by a Coordinate Bench of this Court vide order of 14th March, 2018 (Annexure-2), therefore, I find no justification to deny bail to petitioner, as his case is on better footing than that of co-accused Vijay Pal.

In view of aforesaid, without commenting on the merits of the case, it is directed that petitioner-Mahesh, s/o Lokman be admitted to bail subject to his furnishing bail bond in the sum of ₹50,000/- with one local surety in the like amount to the satisfaction of the trial court. The petitioner shall not leave the country without permission of the trial court and shall surrender his passport, if any, with the trial court. Needless to say if petitioner is found to be tampering with the evidence, then respondent-NCB would be at liberty to get petitioner's bail cancelled.

This application is disposed of in aforesaid terms. Dasti.

(SUNIL GAUR) JUDGE JANUARY 11, 2019 r