Delhi High Court

Birpal vs N.C.B on 6 August, 2020

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on:        29.07.2020
                                        Pronounced on:      06.08.2020

+       BAIL APPLN. 1272/2020
        BIRPAL                                            ..... Petitioner
                           Through      Mr. S. S. Das, Adv.

                           versus

        N.C.B                                            ..... Respondent
                           Through      Mr.Rajesh Manchanda & Mr.Rajat
                                        Manchanda, Advs. for NCB.

        CORAM:
        HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              JUDGMENT

1. Present petition has been filed under section 439 Cr.P.C. read with

section 37 of NDPS Act for grant of bail.

2. The brief facts as per prosecution are that the officers of NCB, on the

basis of secret information, on 19.01.2019, reached house No. 671, Sen

Mohalla, Mahipalpur Bypass Road, New Delhi i.e. the office of Apex

courier. On questioning by the officers of NCB, the manager of Apex

courier informed with regard to receipt of a parcel containing medicines

(5000 tablets each of Alprazolem and zolpidem) from Agra on the same day

and the said courier was collected by one Mr. Lallan, pickup boy of M/s

S.M. Courier who was sent by the petitioner Birpal.

3. Learned counsel for the petitioner submitted that during interrogation,

the name of petitioner was surfaced and arrested by the officers of NCB and

a statement under section 67 of NDPS Act was taken forcibly under torture

and inducement from the petitioner. However, said confessional statement

was retracted by petitioner at the first available opportunity.

4. Further submitted that it is also case of the prosecution that no parcel

containing any medicine or psychotropic substance was ever recovered

either from the possession of the petitioner or at his instance. Moreover,

neither any cash amount has been recovered from the petitioner nor any

money transactions is on record and therefore, there is no iota of evidence

against the petitioner in the present case to connect with the alleged recovery

of the contraband. Thus, the embargo of section 37 is not attracted in the

present case as nothing was recovered either from his possession or at his

instance.

5. Further submitted that in addition to above alleged seizures were

made at Apex Courier, Delhi and it is an admitted fact that the petitioner was

not present at the site where alleged raid and seizure was effected on

19.01.2019. Moreover, the petitioner neither had booked the said

consignment nor he was recipient of the alleged consignment. Moreover,

according to prosecution, the said parcel was meant for co-accused Mohan

Kumar and the same was sent by Dr. Brij Bhushan Bansal, another co-

accused in the present case, and the applicant has no role whatsoever with

regard to the said consignment/seizure.

6. Also submitted that the petitioner as an employee of Mohan Kumar

was duty bound to act as per directions of his master, during his

employment, he had no knowledge whatsoever with regard to any act, if

done by him. As per the charge sheet and panchnama, the alleged parcel

which was allegedly sent from Agra, was seized by the officers of NCB

from M/S Apex Courier, Delhi. Whereas, the consignment slip marked as

Annexure 5 on page 70 of the Charge-sheet, shows the address of the Apex

Courier Company, Delhi and thus, the same proves that it was never

generated at Agra and was fabricated and manipulated after 19.01.2019 at

Delhi by the officers of NCB to implicate the present accused person. From

the record, it cannot be established as to how the petitioner is said to be

connected with the consignment in question. There is no material to connect

the petitioner with the said offence and mere statement of co-accused even

under section 67 is not sufficient to prima-facie show the involvement of the

petitioner and there is no evidence to connect the petitioner with the offence.

Moreover, this Court was pleased to release the alleged main accused i.e.

Mr. Mohan Kumar on bail vide order dated 23.03.2020 and the role of the

petitioner is having less gravity than that of the said accused. Thus,

petitioner deserves to be released on bail even on parity.

7. Learned counsel further submitted that following points are very

important to prove the innocence of the petitioner:

a. It is admitted fact that the petitioner was an employee of co-

accused.

b. It is also admitted by the prosecution that the petitioner had sent

Lallan to collect the parcel in question on behalf of co-accused

Mohan Kumar and her sister-in-law Sandhya Sharma (the

prosecution has knowingly and intentionally did not arrest Ms.

Sandhya Sharma for reasons best known to them. When she was a

director and actively participating in the business carried on by

M/s S.M. Courier and Cargo Pvt. Ltd.). However, the petitioner

had no role either in sending Lallan to collect any parcel from

Apex Courier or he has no knowledge whatsoever qua any parcel

sent to Apex Courier from Agra.

c. According to the statement of Ms. Sandhya Sharma, director of

M/S S.M. Courier and Cargo Pvt. Ltd. recorded u/s 67 of NDPS

act, she and her brother-in-law i.e. Mr. Mohan Kumar were

personally looking after the affairs of M/s S.M. Courier and Cargo

Pvt. Ltd. She had also stated in the said statement that the

petitioner was working as billing manager, and looking after

accounts and operation. She had also stated that the petitioner was

doing the job under the supervision of herself and her brother in

law i.e. Mr. Mohan Kumar. She had also admitted with regard to

her knowledge of sending of Lallan, the pick boy to apex Courier

to collect the prohibited medicines containing 50,000 Zolpidem

and 5000 Alprazolam which were sent by one Dr. Brij Bhusan

Bansal, Agra. She had also admitted in her statement that many

clients of her company were asking about medicines.

d. According to statement of Mr. Mohan Kumar, director of M/s

S.M. Courier Pvt Ltd. recorded u/s 67 of NDPS Act, the petitioner

was one of the employees of his company looking after the work

of pickups, company daily affair management and operational

procedures. He had also inter-alia admitted with respect to his

acquaintance with the other co-accused Dr.Brij Bhusan Bansal to

whom he had met earlier at Agra and at other places. He had also

admitted that he had received a message qua forwarding

medicines namely, Alprax, K25 Phentermine, etc. Also admitted

that he had received many queries on consignments which are

required to be forwarded to foreign countries and persons keep

coming to office and ask queries about medicines and products are

checked at office and then packed and forwarded. From the

statements, it is clear that the parcels were received by his

company and after checking those were sent to foreign countries.

When the consignment was allegedly sent by co-accused Dr. Brij

Bhusan Bansal under the instructions of Mohan Kumar, then

where is the role of the petitioner when he was neither the

consignor nor the consignee or the beneficiary of any transaction

done between co-accused Brij Bhusan Bansal and Mohan Kumar.

8. Lastly submitted that from the above, it is clear that the petitioner has

no role whatsoever with regard to the smuggling of drugs in question and the

entire transaction was, if any, done between the co-accused Mohan Kumar

and Dr. Brij Bhusan Bansal. Thus, the role of the petitioner cannot be more

serious than the role of co-accused Mohan Kumar who was released on bail

by this Court by any stretch of imagination.

9. On the other hand, learned counsel for the respondent submitted that

the contention of the petitioner that he was not in conscious possession of

the drugs recovered and entitled to get bail on the ground of parity, whereas

the role of petitioner and co-accused Mohan Kumar are not identical in its

nature and from the relied upon documents, the petitioner was on the fore-

front of the commission of the offence and a major link for commission of

the offences of present case. As per the case of the prosecution, petitioner is

involved in the abatement/criminal conspiracy of the seized psychotropic

substance/ contraband in this case. The role of the particular person to be

looked into to determine the commission of any offence and as such the plea

that he was in employment, has no significance in law and advantage to the

petitioner. It is relevant to note that petitioner admits that he played the role

in trafficking of narcotics drug and psychotropic substances which is also

apparent from the print outs of whatsapp of the mobile phone with the

petitioner meaning thereby the role of petitioner was direct in illicit

trafficking of narcotics drug and psychotropic substances as per definition of

"illicit traffic" defines under section 2(viiib), (iv), (v), (v) (2).

10. Further submitted that the recovery in this case is of commercial

quantity, therefore, provisions of section 37 o f NDPS Act applies and the

bail application of the offender has to be dealt with and can only be granted

when twin conditions imposed in the said application fulfil i.e. the Court is

satisfied that there are reasonable grounds for believing that he is no guilty

of such offence and that he is not likely to commit any offence while on bail.

Thus, there is no merit in the present petition and the same deserves to be

dismissed.

11. I have heard learned counsel for the parties and carefully gone

through the role assigned to the petitioner and co-accused Mohan Kumar

who was granted bail by this Court vide order dated 23.03.2020 in Bail

Appl.2839/2019. In my opinion, role assigned to co-accused Mohan Kumar

as per prosecution is graver in comparison to the present petitioner on the

grounds discussed interalia.

12. As per the panchnama, no recovery could be made out from the

custody of petitioner. In the case of Mohan Lal vs. State of Rajasthan:

(2015) 6 SCC 222, the Hon'ble Supreme Court held that "the legislature

while enacting the said law was absolutely aware of the said element and

that the word "possession" refers to a mental state as is noticeable from the

language employed in Section 35 of the NDPS Act." The said provisions

read as follows:

"35. Presumption of culpable mental state- (1) in any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be defence for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation- In this Section 'culpable mental state' includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."

13. In the case of Kashmir Singh vs. NCB: MANU/DE/9207/2006, it is

held by this court that the embargo under section 37 NDPS Act has been

explained in detail as to how the same shall not apply and under what

circumstances, an accused is entitled to bail.

14. In the case of Mohd. Ramzan vs. State (NCT of Delhi): 2005 (82)

DRJ 435, it was observed that it is requirement of Section 37 that the Court

considering an application for bail has to go into the question as to whether

there exist or do not exist reasonable grounds for believing that the accused

is not guilty of such offence. Consequently, it becomes imperative that even

at the stage of grant of bail, the Court has to go into the question of whether

any reasonable grounds exist to indicate that the accused is not guilty of the

offence on the basis of the available material before the Court.

15. The alleged parcel seized by NCB was dispatched from Agra as per

the Charge Sheet and Panchnama whereas the said Consignment Slip

marked as Annexure-5 on page no.70 of the Charge Sheet, shows the

address of the said courier company. i.e. Apex Courier, Mahipalpur, Delhi,

clearly proving that the said Consignment Note has been fabricated at Delhi

and the same was never ever generated at Agra. Said factum clearly falls

under the category wherein this Court has observed that the Court should be

satisfied that there are reasonable grounds for believing the accused is not

guilty of such offence. There is no mention of any such Consignment Slip in

the Seizure Memo or the Panchnama of the main Charge Sheet which

further proves that the Consignment Slip has been concocted after

19.01.2019 and subsequently inserted in the main Charge-Sheet. Moreover,

sample received at the laboratory was in the form of light brown coloured

lump and the sample, when allegedly taken was said to weigh 5 gms.,

however, at the laboratory, it was found to weigh 4.6 gms. Whereas in the

present case, the sample was sent and tested by CRCL, Delhi and as per the

alleged Consignment Note No.20235315 (generated in Delhi and not in

Agra) the total weight of the parcel is mentioned as 25.460 kg and weight of

the seized contraband was found to be 21.960 kg. By no stretch of

imagination, can the packing material be equivalent to 3.5 kg, thus, it is

clearly evident from the aforesaid discrepancy that no such parcel was ever

sent from Agra and received at Delhi at the office of Apex Courier.

Moreover, no Consignment Note from Agra was ever generated and the

consignment note annexed by the NCB in its Charge-Sheet is generated at

the office of the courier company at Delhi.

16. Be that as it may, the respondent NCB wrote a letter dated

15.03.2019 to the Director, JPEE Drugs, Plot No.53, Sector-6A, SIDCUL,

Haridwar, Uttarakhand whereby they directed aforesaid company under

section 67 of NDPS Act to provide details in prescribed format in excel

sheet as well as in hard copy at the earliest to facilitate investigation into the

matter regarding CAF, Distributor name, address, email and license no. and

quantity supplied whereby they submitted details as under:

S.NO.     DISTRIBUTOR NAME,       BILL NO.      BATCH NO.      QUANTITY
          ADDRESS,      EMAIL,                                 SUPPLIED
          LICENCE NO.
1.        M/s. J.P. MEDICAL       JD/0591/12   JDT-3692        2240 BOX
          AGENCIES                DATE         12/2018         715 BOX
          25, SANT SINGH SURI     21.12.2018 & 11/2021
          MARKET                  JD/0604/12
          FOUNTAIN       AGRA-    DATE
          282003                  31.12.2018
          GOWDUN F-50, SITE C
          INDUSTRIAL     AREA,
          SIKANDRA AGRA -7
          (U.P.)
          DL. NO. 51GR/20B/2011
          & 51 AGR/21B/2011
          NEW LICENSE NO.
          AGA-2016/20B/00046,
          AGA-2016/21B/00046,
          VALID           UPTO
          19.10.2021.

2.        M/s. J.P. MEDICAL       JD/0604/12   JDT-3693        240 BOX
          AGENCIES                DATE         12/2018         2014 BOX
          25, SANT SINGH SURI     31.12.2018 & 11/2021
          MARKET                  JD/0620/01
          FOUNTAIN       AGRA-    DATE
          282003                  09.01.2019
          GOWDUN F-50, SITE C
          INDUSTRIAL     AREA,
          SIKANDRA AGRA -7
          (U.P.)
          DL. NO. 51GR/20B/2011
          & 51 AGR/21B/2011
          NEW LICENSE NO.
          AGA-2016/20B/00046,
          AGA-2016/21B/00046,
          VALID           UPTO
          19.10.2021.

17. In addition to above, said M/s JPEE Drugs also sent tax invoice dated

21.12.2018 and freight receipt of Rs.20,000/- with tax invoice of

31.12.2018, e-way bill dated 31.12.2018 addressed to M/s J.P. Medical

Agencies, Agra, Uttar Pradesh.

18. Admittedly, in the present case, there is no recovery being effected

from the petitioner either for substance or money trail. He was employee of

the company of Mohan Kumar. He is no involved in any other case

previously. His role, under any imagination, cannot be graver than Mohan

Kumar. As per facts discussed above, twin conditions of section 37 of NDPS

Act satisfy in this case.

19. In view of above facts, this Court is of the view that prima facie case

is not established against the petitioner. However, since the present order is