Delhi High Court
Raju Diwakar @ Pappu vs The State on 13 February, 2020
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13.02.2020
+ BAIL APPLN. 44/2020
RAJU DIWAKAR @ PAPPU ..... Petitioner
Through Mr.Saurabh Kansal, Adv. with
Mr.Tushar Alok & Miss Ashu
Chaudhary, Advs.
versus
THE STATE ..... Respondent
Through Mr. Panna Lal Sharma, APP for State.
Insp.Jitendra Tiwari Special Cell.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. The present petition is filed under section 439 of Cr.P.C. on behalf of
the petitioner for setting aside order dated 04.12.2019 passed by learned
ASJ, Patiala House Courts, Delhi in SC No.8792/2016 and for grant of
regular bail in FIR No.28/2012 registered at Police Station Special Cell for
the offences punishable under sections 21/29/61/85 of NDPS Act.
2. Case of the prosecution is that on 12.10.2012, raid was conducted on
secret information at main road from Dhaula Kuan to Gurgaon and two
persons in Quallis car were intercepted with contraband goods, resulting into
detailed interrogation. During interrogation, the police officials arrested the
co-accused persons and on disclosure statement of one accused P. Mary,
Petitioner herein was arrested and allegedly about 510 grams heroin was
recovered from his house.
3. It is not in dispute that petitioner is in judicial custody since
15.10.2012 i.e. for a period of about seven years.
4. Learned counsel for the petitioner submits that as per the alleged
recovery, the powder which was recovered from the Petitioner was 510
grams out of which 10% (i.e. 51 grams) was Diacetylmorphine (Scientific
name of heroin).
5. Learned APP submits that as per the notification of 2009, it is the total
quantity which is to be taken into consideration and not the percentage of
substance.
6. As per the recent judgment passed by this Court in the case of
'Sandeep Kumar vs. Central Bureau of Narcotics', decided on 08.07.2019,
2019 Lawsuit (DEL) 2001, after appreciating the law laid down by the
Hon'ble Supreme Court in 'Rafiq Qureshi vs. NCB, Eastern Zonal Unit',
decided on 07.05.2019, 2019 Lawsuit (SC) 1179, the Court adjudicated the
matter on the basis of purity percentage available in the contraband.
7. Thus, total quantity of substance recovered from the petitioner is 510
grams, out of which 10% (i.e. 51 grams.) was Heroin, which is intermediate
quantity whereas the commercial quantity is 250 grams.
8. It is undisputed fact that recovery of the substance from accused is as
under:
S.No. Recovery Name of accused % of purity as
per FSL in total
recovery
1 700 grams of Arun Kumar (Exhibit B)
heroin 11.2% of 700
grams = 78.4
grams
2 510 grams of P. Mary (Exhibit C-1)
heroin 15.3% of 510
grams = 78.03
grams
3 510 grams of Raju Divakar @ Pappu (Exhibit E-1)
heroin (petitioner herein) 10% of 510
grams = 51
grams
4 6.2 kgs of hasish Alex and Zidane (Exhibit I-1)
5 1 kg of heroin Zidane (Exhibit H-1)
11.5% of 1 kg =
115 grams
6 800 grams of Anil Pratap Singh Chauhan (Exhibit A-1)
heroin 10.6% of 800
grams = 84.8
grams
Total recovery (if added) = 78.4+78.03+51+115+84.8 = 407.23 grams of
heroin and 6.2 kgs of hashish
9. Learned counsel for petitioner has informed this Court that quantity of
heroin recovered from Anil Pratap Singh Chauhan, one of the accused, is
800 grams and purity of same is 10.6%. Thus, total substance recovered
from said accused is 84.8 grams. The said accused has expired, therefore,
charges have not been framed against him. Thus, recovery cannot be proved
against that accused and that recovery cannot be added in total recovery.
Moreover, he submits that recovery from accused persons were effected at
different time, places and quantities. In such a case, total quantity recovered
from all accused cannot be clubbed.
10. Similar issue came before High Court of Punjab & Haryana at
Chandigarh in Vicky Kaur vs. State of Punjab, wherein while citing case of
LawSuit (P&H) Amar Singh Ramji Bhai Barot vs. State of Gujarat (2005)
7 SCC 550 held that quantity of contraband carried by both accused could
not be added to bring it within the meaning of commercial quantity and
Section 29 will not be attracted.
11. However, learned counsel for petitioner clarified that Supreme Court
has not observed that Section 29 will not be attracted in similar facts and
circumstances rather it is said that keeping in view facts and circumstances
of each case, Section 29 can be attracted.
12. In afore-cited case, it is further held that petitioner's bail application
under Section 167 (2) Cr.P.C. has been dismissed while ignoring the fact
that recovery of poppy husk from different persons on different date, time
and place cannot be put together for the purpose of determining quantity of
poppy husk and to determine that it would be commercial quantity for which
180 days is stipulated for the purpose of filing challan would not be arbitrary
and contrary to factual aspects, statutory provisions and afore-cited
decisions. Thus, petitioner has made out a case to extend benefit of bail
under Section 167 (2) Cr.P.C.
13. In present case, undisputably, recovery is effected from different
accused, at different places and time.
14. However, without commenting on merits of prosecution case as
petitioner is in custody since 15.10.2012 and has already undergone about 8
years and also keeping in view the fact that purity of recovered contraband
from petitioner is less than 250 grams, petitioner deserves benefit of the
aforesaid judgments.
15. Accordingly, he shall be released on bail on his furnishing personal
bond of ₹20,000/- with one surety each of the like amount to the satisfaction
of the Trial Court.
16. Before parting with the order, it is relevant to mention that nothing
contained in this order shall be construed as an expression on the merits of
the case.
17. The present bail application is allowed and disposed of.
18. Copy of this order be transmitted to the Jail Superintendent and the
Trial Court concerned for compliance.
19. Order dasti under the signatures of Court Master.
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 13, 2020/rk
