Mohd. Hanif vs Narcotics Control Bureau
2020 Latest Caselaw 2040 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Reserved on:    12.06.2020
                                    Pronounced on: 24.06.2020

+     BAIL APPLN. 307/2019
      MOHD. HANIF                                     ..... Petitioner
                        Represented by:    Mr. Rakesh Kumar Khanna, Sr.
                                           Adv. with Mr. Ali Mushtaq
                                           Nawazish and Ms. Shefali Jain,
                                           Advs.
                   versus
      NARCOTICS CONTROL BUREAU                 ..... Respondent
                   Represented by: Mr. Subhash Bansal, Standing
                                   Counsel with Mr. Shashwat
                                   Bansal, Adv.

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           JUDGMENT

1. The instant bail application has been filed on behalf of Mohd. Hanif

for grant of regular bail in SC No.37/17 arising out of NCB complaint no.

VIII/15/DZU/15 registered by the Narcotics Control Bureau under Sections

21, 23 and 29 of NDPS Act, 1985.

2. It is alleged that a parcel with commercial invoice no.9479924042

was booked on 25.07.2016 at DHL Express Pvt. Ltd, Trinidad and Tobago

in the name of Abdul Rehman, house No E-353, Khadda Colony Extension,

Jaitpur, Badarpur, New Delhi, India 110044. The said parcel was intercepted

and seized on 27.07.2016 at Gatwick Airport, U.K. Accordingly, on

28.07.2016, Director General, Narcotics Control Bureau received a request

from National Crime Agency UK for controlled delivery of a parcel which

was destined to India in the name of Abdul Rehman, House No E-353,

Khadda Colony Extension, Jaitpur, Badarpur, New Delhi-110044, Tel: 91-

8010725693. Said information and request for control delivery operation of

the consignment in question from the National Crime Agency, U.K. was

forwarded to the Zonal Director NCB DZU on 29.07.2016 by the NCB Head

Quarter for taking necessary action as per the provisions of section 50A of

NDPS Act. Accordingly, on 01.08.2016 Zonal Director, DZU directed and

authorized Sh. Rajeev Sehrawat IO to undertake the control delivery as per

the provisions of section 50A of NDPS Act vide letters dated 01.08.2016

and on 03.08.2016 Zonal Director, DZU directed and authorised Sh. Rajeev

Sehrawat IO to collect the consignment parcel from the captain of flight no

BA 143, namely, Mr. Martin Taylor on the same day. In the intervening

night of 03/04.08.2016 the consignment in question was brought by the

Captain of British Airways Flight No.BA- 143 of British Airways at IGI

Airport, New Delhi and Sh. Rajeev Sehrawat IO received the said

consignment from the Captain in sealed condition bearing seal no.

BAO1508100 along with letter of request and Indemnity letter of the

captain. After receiving the consignment Sh. Rajeev Sehrawat IO came back

to the NCB/DZU office and deposited the parcel of the controlled delivery

in Malkhana and entry was made in the Control Delivery register. Rajeev

Sehrawat submitted his report dated 04.08.2016 before Sh. Jai Kishan Supdt.

NCB/DZU. It is further alleged that on 04.08.2016 Rajeev Sehrawat IO

constituted a team and left for the office DHL Okhla Phase III, New Delhi

along with the parcel of the controlled delivery. Pursuant to reaching the

DHL office, Rajeev Sehrawat 10 along DHL staff attempted to deliver the

said parcel to the Abdul Rehman (co-accused in the present case) however

was unsuccessful as the address could not be located and the call was not

answered. On 05.08.2016 Rajeev Sehrawat IO received information from

DHL Okhla office that Abdul Rehman (co-accused) had telephoned at their

office and enquired about the parcel in question and requested to send the

delivery to his address. Accordingly, the NCB officials along with delivery

man of DHL courier service and the parcel of controlled delivery left for

House no E-353, Khadda Colony, Jaitpur Extension, Badarpur, New Delhi,

i.e. the address mentioned on the parcel of controlled delivery and the DHL

staff called on the mobile number written on the said parcel and one person

came to the vehicle of DHL and disclosed his name as Abdul Rehman. DHL

staff obtained his signatures on the receipt slip and handed over the said

parcel to him. Immediately on receiving of the parcel NCB team stopped

him and Rajeev Sehrawat IO introduced himself and team members to that

person (Abdul Rehman) and inquired about the said parcel. He disclosed

that he had received the parcel on the instructions of his friend Hanif

(petitioner herein) and the said parcel belonged to a friend of Hanif. Further

informed that he had to take the parcel to Hanif and thereafter Hanif will

take the parcel to Prince (Accused No.l) and handover the same to Prince.

Sh. Rampal IO carried out the personal search of Abdul Rehman in presence

of independent witnesses but nothing incriminating was recovered from his

personal search. In preliminary inquiry, Abdul Rehman disclosed that the

parcel was to be handed over to Hanif and he can get Hanif apprehended.

3. Thereafter, the same team members mentioned-above left from the

spot i.e. House no. E-353, Khadda Colony, Jaitpur Extension, Badarpur,

New Delhi (as disclosed by Abdul Rehman) along with both the independent

witnesses and Abdul Rehman and reached Madanpur Khadar road near

crossing at about 1340 Hrs. When the team reached at Madanpur Khadar

road i.e. public place near crossing, one person was already standing there

and Abdul Rehman pointed out towards him and identified him to be Mohd.

Hanif (petitioner herein). At that stage, Anand Kumar IO introduced himself

and team members and thereafter Pardeep IO served a notice under section

50 of NDPS Act to Mohd. Hanif and carried out the personal search of

petitioner in presence of independent witnesses but nothing incriminating

was recovered from his personal search.

4. Further alleged that on information from Mohd Hanif, Prince (co-

accused) was intercepted by the NCB team members from Janakpuri flyover

near district centre and Sanjay Mehta IO carried out the personal search of

Bartholomew Okoh @ Prince in presence of independent witnesses/but

nothing incriminating was recovered from his personal search. Thereafter,

the controlled delivery parcel bearing AWB no 9479924042 sealed with the

seal of U. K. Boarder Agency, seal no BA 01508100 with seal intact

condition was taken from Bartholomew Okoh @ Prince in presence of

Abdul Rehman & Mohd. Hanif. The plastics polythene was cut opened

without disturbing the seal affixed by the UK Border agency BA 01508100,

a yellow colour box DHL Express, No-7 on which one way bill was affixed

on one side, shipment documents affixed on top. On opening the box, one

white and green box was visible on which "infrared blood circulation

massager" & one photo of massager machine was printed. The box was

taken out and box was opened and it was found containing one infrared

blood circulation massager machine of grey colour, made in china no CM

0109758428. The machine was taken out and on examining some hollow

space was observed in the bottom of the machine. The machine was broken

and it was found containing two black ball shaped packet rapped in black

adhesive tape. The black adhesive tape of one of the packet was removed

and thin transparent polythene packet was found. The thin polythene was

also removed and a white polythene packet with tied mouth was found

containing some white powder. A small quantity of powder was taken out

and tested with the help of field testing kit which gave positive result for

Cocaine. Similarly, other ball shaped packet was taken out. The black

adhesive tape was removed and thin transparent polythene was found

wrapped around it. The thin polythene was also removed and a white

polythene packet with tied mouth was found containing some white powder.

Accordingly, a small quantity of powder was taken out into polythene and

was mixed and tested with the help of field testing kit which gave positive

result for Cocaine. As the substance in both packets was of same colour,

texture and property and both gave positive test for "Cocaine" it was

transferred homogenously and on weighing it came out to be 500 Grams.

5. Learned counsel appearing on behalf of the petitioner/accused

submitted that Anand Kumar IO served Summon under Section 67 NDPS

Act dated 05.08.2016 to petitioner and directed him to appear in the Office

of N.C.B, DZU forthwith to tender his statement and in pursuance of the

summons under section 67 of NDPS Act. Accordingly, he appeared before

Sanjay Mehta IO on 06.08.2016 and tendered his statement under Section 67

NDPS Act. However, learned Special Judge failed to appreciate the fact that

if the petitioner was directed to appear before the office of NCB on

05.08.2016 then why he would appear on 06.08.2016 on coming to the

knowledge that NCB officials will arrest him. In such a case, it shows the

bonafide intention of the petitioner to cooperate in the investigation and not

run away. The petitioner had tendered his statement under duress and

coercion. Therefore, the petitioner filed a retraction application before the

Special Court, Patiala House, New Delhi and submitted that his statement

was taken by NCB official under pressure, threat and his signature was

obtained on various blank papers illegally as dictated by NCB officials.

6. Learned counsel for petitioner further submitted that in the present

matter, apart from retracted confession of accused persons, there is no

material or evidence against the petitioner. A person cannot be convicted on

the basis of a retracted confession. Moreover, present case is of a control

delivery, which has not been undertaken by an authorized person. As per

section 50A, it is the Director General of Narcotics Control Bureau or any

other officer authorized by him in this behalf who may undertake control

delivery of any consignment. In the present matter, Director General NCB

authorized Zonal Director NCB Delhi Zonal Unit to undertake the control

delivery. However, the control delivery was undertaken by Shri Rajeev

Sehrawat IO which is against the law. In addition, neither the Director

General nor the Zonal Director has been cited as a witness. Moreover, the

official of National Crime Agency and pilot of British Airways, who had

informed and handed over the control delivery have also not been cited as

witness by the prosecution. Thus, present petitioner deserves bail.

7. To strengthen his arguments, learned counsel for the petitioner has

relied upon the judgment delivered by the Hon'ble Supreme Court in the

case of Surinder Kumar Khanna vs. Intelligence Officer, Directorate of

Revenue Intelligence: (2018) 8 SCC 271, whereby held as under:

"13. In the present case it is accepted that apart from the

aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court.

14. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges levelled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."

8. This Court in umpteen numbers of cases has granted bail to the

accused relying on the aforementioned judgments. Few of the

judgments/orders are cited hereinbelow:

      i.      Narotam Pradhan vs. State (NCT of Delhi): 2019 SCC

              OnLine Del 6547


      ii.     Rajesh Sharma vs. Directorate of Revenue Intelligence:

              2018 SCC OnLine Delhi 12372

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

delivery of contraband parcel was effected on 05.08.2016 (whereas said

parcel was supposed to be delivered on 04.08.2016 by DHL). Relevant

entries of conversations on 04.08.2016 and 05.08.2016 exist between the

accused persons including petitioner herein. As per voluntary statement

recorded under section 67 NDPS Act of Mohd. Hanif, petitioner herein,

admitted of using the mobile number 8510072976.

10. As per Call Data Record (CDR) Mohd. Hanif (M-8510072976) was in

constant touch with co-accused Abdul Rehman (M-7011600510) and

Bartholomew Okoh @ Prince (M-8826039442) on 04.08.2016 and

05.08.2016 for the purpose of obtaining delivery of said parcel containing

contraband. As per voluntary statement recorded under section 67 of NDPS

Act of Bartholomew Okoh @ Prince, he admitted of using the mobile

numbers: 8826039442 & 9999153613.

11. As per voluntary statement recorded under section 67 of NDPS Act of

Abdul Rehman, he admitted of using the mobile numbers: 7011600510 &

8010725693. (This mobile number was provided by Prince (co-accused) to

Abdul and this number was written on the Parcel through which DHL staff

coordinated for delivery.)

12. Learned counsel further submitted that in the retraction statement of

Mohd. Hanif, he has stated, "I have no concern or connection with Abdul

Rehman or Bartholomew Okoh @ Prince." However, from CDR (record), it

revealed that the present petitioner was in constant touch with other accused.

In the rejoinder to present Bail Application, under para (xx), it has been

stated that petitioner knew Prince and Abdul Rehman. Similarly, under

voluntary statement of petitioner, he has stated to be knowing Prince

through Medanta Hospital and Abdul Rehman, for the last three years.

Hence, the presumption cannot be concluded that the petitioner has no

connection or was not in touch with the other accused persons.

13. It is submitted that petitioner has indulged in trafficking/import &

possession of contraband-commercial quantity of 500 gms. Cocaine in

conspiracy with other accused persons. Therefore, on the basis of material

on record, learned Trial Court prima faciely has framed the charges against

the accused persons and there is substantive evidence on record, i.e. CDR

and public witnesses and the recovery of commercial quantity of contraband

(500 gms. Cocaine) other than voluntary statements of accused persons;

therefore, as per section 37(1)(b)(ii), there are no reasonable grounds for

believing by this Court that the accused is prima-faciely not guilty of said

offence and there are sufficient reasonable grounds to believe prima faciely

that accused is guilty of offence under NDPS Act, hence, accused does not

deserve to be released on bail.

14. I have heard learned counsel for the parties and perused the material

available on record.

15. Undisputedly, charges have been framed against the accused persons

including petitioner herein. The recovered contraband from the parcel is

500 gms. Cocaine, (which is commercial quantity).

16. Further, statements of the accused including petitioner herein,

recorded under section 67 of NDPS Act, corroborates the recovery of drug

in the manner accused persons have dealt with which is admissible under

section 27 of The Evidence Act. The CDR of the accused persons as

mentioned above also corroborates that all three accused persons were in

touch to receive the parcel as discussed interalia. On 05.08.2016, controlled

delivery operation was undertaken in coordination with DHL Courier Staff.

The consignee/accused Abdul Rehman @ Dablu received the parcel, at that

moment he was intercepted and upon enquiry, he revealed that he had

received the said parcel on instructions of petitioner in the presence of

public witnesses. Accused Abdul Rehman made a call to petitioner and

petitioner came at Madan Pur Khadar near crossing to receive the said parcel

and at that moment, he was intercepted by the team on the pointing of the

accused Abdul Rehman. In preliminary inquiry, petitioner admitted that he

had asked Abdul Rehman to receive said parcel on his behalf. Petitioner

further revealed that he received the said parcel on instructions of

Bartholomew Okoh @ Prince in the presence of public witnesses.

Moreover, petitioner made a call to accused Prince on which he told

petitioner to come at Janak Puri flyover, near Janakpuri Distt. Centre, New

Delhi to deliver the parcel. Prince was waiting there to take the delivery of

said parcel and he was intercepted while taking the delivery of the said

parcel during operation at Janakpuri Flyover near Janakpuri District Centre.

On checking the said parcel, 500 gms. of Cocaine was recovered from the

foot massager concealed in two round shaped packets. The voluntary

statements of accused persons recorded under section 67 of NDPS Act are

inculpatory and admitted the delivery of parcel containing contraband.

17. In view of facts discussed above, the judgments relied upon by the

petitioner are not applicable in the present case. Moreover, there is an

embargo under section 37 of NDPS Act to grant bail, unless the case is

established otherwise, however, the petitioner has failed.

18. After going through rival contentions of the parties and the material

placed on record, I am of the view that section 37 of NDPS Act is applicable

in the present case. Thus, not inclined to grant bail.

19. The petition is, accordingly, dismissed with on order as to costs.

20. Pending application, if any, stands disposed of.

21. It is hereby made it clear that the Trial Court shall not get influenced

by the observations made by this Court while passing order in the present

petition.

(SURESH KUMAR KAIT) JUDGE JUNE 24, 2020 ab