Delhi High Court
Mahesh Goyal vs State on 24 December, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. No. 548/2020
Order Reserved on: 21.08.2020
Order Pronounced on: 24.12.2020
MAHESH GOYAL ..... Applicant
Through: Mr.G.P.Thareja,
Mr.HarshitThareja&Mr.
SatyamThareja,
Advocates.
Versus
STATE .....Respondent
Through: Mr. Kamal Kumar Ghei, APP
for State.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The applicant vide the present petition seeks the grant of regular
bail in relation to FIR No. 192/2017, Police Station Crime Branch,
Daryaganj, registered under Sections 22/29 of the NDPS Act, 1985.
It has been submitted on behalf of the applicant by the learned
counsel for the applicant that the applicant has been falsely implicated
in the instant case with the allegations levelled against the application
of the alleged recovery of 20 gms of MDMA (a psychotropic
substance) at the apartment adjacent to Raman Apartments where the
applicant resides are wholly erroneous and false.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
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PS to HMJ ANU
MALHOTRA.
2. Notice of the application was served to the State and accepted
on behalf of the State.
3. The prosecution version as set forth through the status reports
that have been submitted by the State dated 16.3.2020, 18.6.2020,
14.8.2020 and 20.8.2020 states to the effect that on 29.10.2017, ASI
Pawan Kumar of the Narcotics Cell, Crime Branch received a secret
information that a person named Kamal Kalra, the co-accused in the
FIR, a resident of Rohini, Delhi was involved in the sale and supply of
Ecstacy (a party drug) in the area of Delhi & NCR and the informer
revealed that Kamal Kalra would come near the Goodwill Apartment
Sector-13, Rohini Delhi with his associate between 6:30 p.m. to 7 p.m.
to deliver Ecstacy to someone and thereafter the secret information
was shared with Inspector/N&CP, who verified the facts about the
secret information from the informer and conveyed the same to the
ACP/N&CP and the ACP ordered the conducting of a raid and that the
secret information was reduced into writing vide DD No. 07 dated
29.10.2017 at 5:50 p.m. at the Narcotics Cell Crime Branch which was
forwarded to the senior officers in compliance of Section 42 of the
NDPS Act, 1985.
4. It has been further put forth by the State that after obtaining
permission from the senior officers and following all the mandatory
provisions required under NDPS Act, ASI Pawan Kumar organized a
raiding comprising himself, ASI Satbir Singh No. 338/ Crime, HC
Satender Pal No. 328/Crime and left for the spot vide DD No. 8 at 6
p.m. in a private vehicle No. HR-10N-0449 and on the way to the
spot, public persons were requested to join the raiding party but none
Signature
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By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
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PS to HMJ ANU
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of them agreed and a trap was laid at the spot and at the instance of the
informer one person whose identity was revealed as Kamal Kalra S/o
Rajinder Kalra R/o F-3/58 (2nd Floor) Sector-11, Rohini, Delhi was
apprehended at about 7:05 p.m. and that that apprehended person was
apprised of the secret information and his legal right to be searched in
the presence of a Gazetted Officer or a Magistrate and a written notice
under Section 50 of the NDPS Act, 1985 was also served upon him
but he declined the offer to be searched in the presence of a Gazetted
Officer or a Magistrate whereafter the formal search of Kamal Kalra
was conducted and 100 pills of Ecstacy (weighing 42 grams) were
recovered from his possession and the recovered contraband was
seized after taking out two samples of 10 pills each and an FIR No.
192/17 under Sections 22/29 of the NDPS Act, 1985 was got
registered at the Police Station Crime Branch and that the further
investigation of the case was carried out by ASI Dushyant Kumar.
5. It has been put forth further by the prosecution that during
investigation the IO ASI Dushyant Kumar arrested the accused Kamal
Kalra in the case who had made a disclosure statement stating therein
that he had procured the recovered contraband from Mahesh Goel, i.e.
the present applicant, and disclosed the Mobile number of Mahesh
Goel as being 9821071319 and that Kamal Kalra was allowed to use
his seized mobile phone bearing No. 7777077964 during police
custody remand in order to apprehend the source Mahesh Goel (i.e.,
the present applicant) and at the instance of the accused Kamal Kalra,
the applicant herein was apprehended at 8:30 p.m on 31.10.2017 from
Dwarka and recovery of 20 grams of MDMA (a Psychotropic
Signature
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By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
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MALHOTRA.
substance used in rave parties) was effected from the applicant who
was then arrested. The exhibits are stated to have been sent to the FSL
for analysis and the report thereof received as being positive for
Ecstacy (MDMA). Inter alia it has been submitted by the State that
the CDR analysis of the mobile phones of both the accused, i.e.,
Kamal Kalra and the applicant herein also confirm their proximity and
presence at the place of delivery of the contraband and after
completion of the investigation the charge sheet was filed in the Court
and the CDR details of both the accused, i.e., Kamal Kalra and the
applicant herein, was a part of the charge sheet but that there was no
transcription/conversation in existence. It is further submitted by the
prosecution that charges have been framed by the learned Trial Court
on 15.11.2018 qua the alleged commission of offences under Section
22/29 of the NDPS Act, 1985 against both the co-accused, Kamal
Kalra and Mahesh Goel i.e., the applicant herein with the charge
against the applicant being of having been apprehended on 31.10.2017
at the instance of the co-accused from the road outside Gokul
Apartments Sector-11 Dwarka, Delhi with 20 gms of MDMA having
been recovered from his possession and of both Kamal Kalra and the
applicant herein having assisted each other in pursuance to their
criminal conspiracy for supply/trafficking of psychotropic substance
apart from the applicant having also been found in possession of
20gms of MDMA Ecstacy and having committed an offence
punishable under Section 21 and 22 of the NDPS Act, 1985 and of
thus having committed offences punishable under Sections 22/29 of
the NDPS Act, 1985.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
This file is
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PS to HMJ ANU
MALHOTRA.
6. Through the status report dated 18.6.2020, the State has
submitted the CDR details and location of the applicant and of the co-
accused Kamal Kalra to the effect:
"CDR details and location of appellant Mahesh Goel are as:-
• Mahesh Goel Mobile No - 9821071319
• Kamal KaIra Mobile No - 7777077964
• CDR analysis shows that appellant and accused Kamal KaIra
were also in contact with each other on 29.10.17
Calling No. Called No. Date/Time Dur Cell 1 of
Location Location Appellant
9821071319 7777077964 31/10/17 36sec 32061_9735
Janakpuri I.P Estate, At Janakpuri
Ring Road, 13:44:16
Delhi
9821071319 777707796 31/10/17 62sec 31081_60435
Chanakyapuri, At
Delhi 14:31:35
7777077964 9821071319 31/10/17 66sec 31081_25263
Moti Bagh At
14:36:14
7777077964 9821071319 31/10/17 37sec 31061_7506
Gurgaon, Sec-5, At Sec-5,
Dwarka Dwarka
Haryana 18:47:32
Signature
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By:SUMIT GHAI
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Date:24.12.2020
19:33:50
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MALHOTRA.
7777077964 9821071319 31/10/17 16sec 31061_26810
Sec 5 Sec-12, At Sec-12,
Dwarka Dwarka 20:20:07 Dwarka
7777077964 9821071319 31/10/17 23sec 31061_50893
Sec-12, Sec-12, At Sec-12,
Dwarka Dwarka 20:26:44 Dwarka
9821071319 7777077964 31/10/17 I5sec 31061_26816
Sec-12, Sec-12, At Sec-12,
Dwarka Dwarka 20:29:16 Dwarka
"
7. It has further been submitted on behalf of the State that the
contraband recovered from the applicant was of commercial quantity
and that the release of the applicant on bail would result in his
involvement in drug trafficking again and that he will also flout the
condition of the grant of bail and may abscond.
8. As per averments made in the application filed by the applicant,
it is sought to be submitted that the Psychotropic substance allegedly
recovered from the applicant has not been analyzed quantitatively by
the FSL Expert and the actual quantity of the Psychotropic substance
and the percentage of the actual chemical in article allegedly
recovered has not been determined and thus it cannot be contended on
analysis that a commercial quantity of contraband has allegedly been
recovered from the applicant. In relation to this contention at the
outset itself it has to be observed that in view of the verdict of the
Signature
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By:SUMIT GHAI
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Date:24.12.2020
19:33:50
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Hon'ble Supreme Court in Hira Singh & Anr. V. Union of India &
Anr., Criminal Appeal No.722/2017, dated 22.04.2020 whereby it
was observed to the effect in para 10 :
"10. In view of the above and for the reasons stated above,
Reference is answered as under:
(I). The decision of this Court in the case of E. Micheal Raj
(Supra) taking the view that in the mixture of narcotic drugs or
psychotropic substance with one or more neutral substance(s),
the quantity of the neutral substance(s) is not to be taken into
consideration while determining the small quantity or
commercial quantity of a narcotic drug or psychotropic
substance and only the actual content by weight of the offending
narcotic drug which is relevant for the purpose of determining
whether it would constitute small quantity or commercial
quantity, is not a good law;
(II). In case of seizure of mixture of Narcotic Drugs or
Psychotropic Substances with one or more neutral substance(s),
the quantity of neutral substance(s) is not to be excluded and to
be taken into consideration along with actual content by weight
of the offending drug, while determining the "small or
commercial quantity" of the Narcotic Drugs or Psychotropic
Substances;
(III). Section 21 of the NDPS Act is not stand-alone provision
and must be construed along with other provisions in the statute
including provisions in the NDPS Act including Notification
No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E)
dated 19.10.2001;
(IV). Challenge to Notification dated 18.11.2009 adding "Note
4" to the Notification dated 19.10.2001, fails and it is observed
and held that the same is not ultra vires to the Scheme and the
relevant provisions of the NDPS Act. Consequently, writ
petitions and Civil Appeal No. 5218/2017 challenging
Signature
the aforesaid notification stand dismissed.
Not Verified
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Signing
Date:24.12.2020
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it is thus apparent that the quantum of the whole substance that is
recovered from an accused has to be taken into account and thus it
cannot be sought to be contended on behalf of the applicant that the
allegations levelled against the applicant of alleged possession of 20
gms of MDMA, cannot be accepted even prima facie, at this stage.
9. The other contention raised on behalf of the applicant was to the
effect that on 29.10.2017 after 4:10 p.m. after detention of the co-
accused Kamal Kalra his phone was switched off and there was no
incoming and outgoing calls from the said mobile number till his
phone was switched on 30.10.2017 at about 4:10 p.m. and that the
calls then had been made by the prosecution to falsely implicate the
applicant as the applicant was known to the co-accused Kamal Kalra
and that the mobile phone of Kamal Kalra was switched off on
30.10.2017 and had been switched on 31.10.2017 at 1:44 p.m. and that
the petitioner had received a call from the mobile number 8920889497
at about 1 p.m. enquiring about the acquaintance of the petitioner with
Kamal Kalra and also asking him to make a call to the co-accused
Kamal Kalra and at the instance of the said caller, the petitioner called
on the mobile phone of the co-accused Kamal Kalra and immediately
thereafter the police had arrested the applicant by calling him outside
Raman Apartment where the petitioner lived and which apartment was
adjacent to Gokul Apartments outside which the Investigating
Agency claims to have apprehended the applicant with the aid of the
mobile of the co-accused Kamal Kalra.
Signature
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By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
This file is
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PS to HMJ ANU
MALHOTRA.
10. It has thus been submitted on behalf of the applicant that the
substance described as MDMA has been planted on Kamal Kalra and
as also on the applicant.
11. As regards the aspect of alleged false implication of Kamal
Kalra, the same does not form part of the domain of the consideration
of the Bail Appln. No. 548/2020 which is the bail application of the
present applicant Mahesh Goel.
12. It has further been submitted on behalf of the applicant though
Crl.M.A. No. 5692/2020 seeking to urge additional grounds in support
of the plea for grant of bail to contend to the effect that on enquiry in
as much as the arrest of the co-accused Kamal Kalra vide order dated
17.10.2019 was found to be false and illegal and without jurisdiction,
in as much as the co-accused Kamal Kalra S/o Rajinder Kalra as per
photographs on record was detained in the name of Tarun S/o Rajinder
at 4:10 p.m. with the claim of the prosecution in the charge sheet
being to the effect that Kamal Kalra was arrested at 7:10 p.m. in front
of the Goodwill Apartment, the arrest of Kamal Kalra had been held to
be illegal and without any jurisdiction and it has thus been submitted
on behalf of the applicant that the consequential arrest of the applicant
pursuant to the alleged disclosure statement of Kamal Kalra, cannot
thus be presumed to be trustworthy. It has inter alia been submitted
on behalf of the applicant that there was no requisite authorization for
conducting any search in relation to the applicant and no requisite
authorization under Section 42 of the NDPS Act, 1985, also given nor
was the alleged search of the applicant in compliance of the provisions
of Section 50 of the NDPS Act, 1985, and thus in the absence of
Signature
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Date:24.12.2020
19:33:50
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MALHOTRA.
compliance of Section 50 of the NDPS Act, 1985, the grant of bail to
the applicant cannot be restricted by Section 37 of the NDPS, Act,
1985.
13. There are other aspects that have been sought to be contended
on behalf of the applicant in relation to the non-details of record in
relation to the seals issued to the Investigating Agency in relation to
the alleged search made from the applicant to contend that the alleged
seizure of 20 gms of the Ecstacy MDMA from the applicant, cannot
be believed.
14. Inter alia it has been submitted on behalf of the applicant that
the details in the Diary of Correspondence of the prosecution against
Item no. 1922 in relation to the applicant is wholly unreadable which
casts a doubt on the veracity of the prosecution version. It has also
been submitted on behalf of the applicant that there is nothing to
indicate that the copy of the Special Report was sent to the superior
officer under Section 57 of the NDPS Act, 1985.
15. The status report dated 14.8.2020 of the State has submitted to
clarify this aspect by submitting to the effect :
" i.e. 29.10.2017, prior to the seizure of contraband Ecstasy
(M.D.M.A), another secret information had also been received
by the then Inspector Brijpal Singh of Narcotic Cell Crime
Branch through an informer that one person namely Gurpreet,
involved in supply of illegal weapons, would come in between
4:00-4:30 PM near Neelkanth Apartment Sector-13, Rohini,
Delhi to deliver a consignment of illegal weapons, to someone.
The secret information was shared with the then
ACP/Narcotics who ordered to conduct raid. Inspector Brijpal
Singh recorded the secret information in Daily Diary Register
and made his departure vide DD No. 4 at 2:50 PM along with
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Date:24.12.2020
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raiding party members and the informer. As per DD Entry No.
4, dated 20.10.17, at about 4:05 PM a Swift Dezire Car reached
the spot near Neelkanth Apartent Sector-13 Rohini, whose
driver was identified as Gurpreet by the informer. Two persons
found present in the car were overpowered who revealed their
identities as (1) Gurpreet Singh s/o Late Surjeet Singh r/o
Rohini and (2) Tarun s/o Rajinder r/o Prashant Vihar, Delhi.
Search of the car and both the above mentioned persons was
made but no illegal weapon was found during search of the
apprehended persons and their car, therefore they were relieved
at that time itself. On reaching back to office Narcotics Cell,
Inspr. Brijpal Singh made the arrival of Police Party vide DD
No. 6 at 4:55 PM by mentioning all the facts.
2. That, later on, on the same day, ASI Pawan Kumar of
Narcotics Cell Crime Branch, received a secret information that
one person namely Kamal Kalra resident of Rohini Delhi is
involved in sale & supply of ECSTASY (a party drug) in Delhi
& NCR. The informer further revealed that Kamal Kalra would
come near Goodwill Apartment Sector-13, Rohini Delhi with his
associate Akshay, in-between 06:30 PM to 07:00PMto deliver
Ecstacy to someone. Acting upon the said information a raid
was conducted by ASI Pawan Kumar along with raiding team
and apprehended one person at about 7:05 PM, whose identity
revealed as Kamal Kalra s/o Rajinder Kalra r/o F-3/58 (2nd
Floort) Sector-11, Rohini Delhi. It was revealed that Kamal
Kalra and Tarun was the same person and he had disclosed
his wrong name as "Tarun" to Inspr. Brijal Singh when he
was caught with Gurpreet Singh as per available record.
3.That, it is clarified here that as per DD entries lodged the
places of occurrence of both the incidents were different but in
a same locality i.e. in Sector 13 Rohini, Delhi. Applicant is
trying to mislead by clubbing two separate raids/incidents. The
trial court has already framed charge against the appellant and
the co-accused Kamal Kalra and also dismissed the bail
application of the appellant. Further, the CDR's of both the
accused persons, arrested in the present case, confirms their
association with each other and even their presence at the place
of delivery of contraband at Dwarka.".
Signature
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By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
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16. On a consideration of the submissions that have been made on
behalf of either side the Court is of the considered view that as regards
the aspect as to whether or not there has been a requisite compliance
of the provisions of Section 42 and Section 50 of the NDPS Act, 1985,
the same are aspects which can only be determined at the time of trial.
17. The allegations levelled against the applicant relate to the
alleged possession of 20 grams of MDMA (Ecstacy) which is a
psychotropic substance and which was possessed by the applicant
beyond the small quantity of 0.5 gms prescribed under the NDPS Act,
1985 at serial No. 134 of the table notified specifying small and
commercial quantity thereof and as the allegations levelled against the
applicant relate to the alleged possession of 20 gms of the MDMA
which is a commercial quantity, it is apparent that the embargo of
Section 37 of the NDPS Act, 1985 would apply.
18. As regards the aspect raised on behalf of the applicant with
regard to the discrepancies in the DD Entries, the same can only be
determined on trial. In the instant case, taking into account the alleged
possession of 20 gms of MDMA as observed hereinabove, which falls
within the ambit of the commercial quantity in terms of Serial no. 134
of the Table to the NDPS Act, 1985, there is no ground whatsoever for
grant of bail to the applicant in view of the embargo which applies in
terms of Section 37 of the NDPS Act, 1985.
19. The Bail Application No.548/2020 is thus declined.
ANU MALHOTRA, J.
Signature
DECEMBER 24, 2020/SV
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.12.2020
19:33:50
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
