Mohan Kumar vs Narcotic Control Bureau
2020 Latest Caselaw 1692 Del

$~1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on:         28.02.2020
                                            Pronounced on:       23.03.2020

+     BAIL APPLN. 2839/2019
      MOHAN KUMAR                                        ..... Petitioner
                         Through      Mr.Sandeep Dhingra, Adv. with
                                      Mr.Vikas Nagpal, Adv.
                         versus

      NARCOTIC CONTROL BUREAU               ..... Respondent
                   Through  Mr.Rajesh Manchanda, Adv. with
                            Mr.Rajat Manchanda, Mr.Subham
                            Kothari, Advs.
      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT
                        JUDGMENT

1. Present petition is filed under section 439 Cr.P.C for grant of bail in

case No.VIII/04/DZU/2019 registered for the offences punishable under

section 22(c) & 29 of NDPS Act which is pending for trial before learned

Special Judge, ASJ, Patiala House Courts, New Delhi who has dismissed

bail application under section 439 Cr.P.C. of petitioner vide order dated

16.10.2019 in case No.SC/335/19.

2. Case of NCB/prosecuting agency is that the aforesaid case was

registered on the complaint on 19.01.2019 whereby stated that at around

14:30 pm, when NCB team reached House No.671, Sen Mohalla,

Mahipalpur Bypass Road, New Delhi which is the Office of Apex Courier,

Delhi. Upon questioning by NCB officials, the Manager of Apex Courier

informed them about the parcel which contained certain medicines which

had arrived from Agra and included Zolpidem and Alporazolam Tablets and

the parcel was addressed to Mr. Ajay Mahipal, Delhi. The courier was

received at the office of Apex Courier by its Manager, Mr.Om Prakash on

19.01.2019. The courier was collected by Lallan who was sent by Birpal.

The investigating agency asked Lallan to open the parcel and ceased the

medicine therein. In further course of action, the investigating agency

detained the petitioner on 23.01.2019 for investigation and he was

subsequently arrested on 25.01.2019. He remained in custody till 10.04.2019

and thereafter, he was released on interim bail which continued till

02.07.2019 on the ground of medical condition of his wife who met with an

accident and also due to old age of his parents, who were around 76

(mother) and 80 (father) years old and suffering from heart ailments and

various other age related ailments.

3. As per the case of prosecution, investigating agency raided the house

of petitioner on 29.01.2019 but no contraband was recovered.

4. Learned counsel appearing on behalf of petitioner submits that

petitioner cannot be said to be in the conscious possession of the contraband

as recovery has been not made at the instance of petitioner and the

investigating agency could not prove any direct case against petitioner.

5. In the present case, prosecution has fabricated the story wherein

Dr.Brij Bhushan Bansal (co-accused) allegedly sent a parcel on 18.01.2019

through courier containing psychotropic medicines ALPRAZOLAM (5000)

and ZOLPIDEM (50000) booked by said doctor from Agra through Gaurav

Mehndiratta, co-accused and Satpal, consigner in the name of consignee

Ajay Mahipal, Delhi. The consignment slip bearing No.20235315 for the

said parcel from Agra with consigner name as Satpal (Agra) and consignee

name as Ajay Mahipal, Delhi, had the delivery address of Apex Courier

Delhi as 671, Sen Mohalla, Near Booster Pump, Mahipalpur, New Delhi.

6. Learned counsel appearing on behalf of petitioner submits that bare

perusal of the receipt would prove the fraud played by NCB, as the said

courier receipt has been generated from the Delhi office of courier company

(Apex Courier) and not from Agra, from where said courier was allegedly

booked. Petitioner was neither the consigner nor the consignee of said

parcel. Alleged parcel was seized by NCB team on 19.01.2019 at about

03:50 pm at Apex Courier, New Delhi. Accordingly, notice was

subsequently issued to petitioner on 23.01.2019 under section 67 of NDPS

Act at about 08:30 am at his residence 432, Nilgiri Apartments, Alaknanda,

New Delhi, to join investigation in connection with seizure of alleged parcel

which was effected on 19.01.2019 at Apex Courier, Mahipalpur, Delhi.

Shockingly, petitioner was shown as accused on 19.01.2019 itself (i.e. the

day of alleged raid) at Serial No.1 of column 7. Petitioner was one of the

Director of M/s S M Courier, having office at S M Plaza Building, Khasra

No.1016/2, Opposite CISF Camp Gate, Bypass Road, Mahipalpur, Delhi.

Subsequently, raids were conducted at:

a. S M Courier office at S M Plaza Building, Khasra No.1016/2,

Opposite CISF Camp Gate, Bypass Road, Mahipalpur, Delhi on

23.01.2019. Annexure 37 on page 220-221 of main chargesheet.

b. Report of search by NCB at S M Courier office on 24.01.2019 is

enclosed as Annexure 39 on Page 223-234 of main chargesheet.

c. At residence of petitioner herein, Mohan Kumar, 432, Nilgiri

Apartments, Alaknanda, New Delhi 110019 on 29.01.2019

Annexure-49 on Page 257 of main chargesheet.

7. Learned counsel further submits that in all the above mentioned

raids/search, no recovery, no money trail and no incriminating evidence was

found from the office of petitioner or his residence mentioned above which

has been admitted by the Prosecution. Alleged seizure was made at Apex

Courier, Delhi and NCB admits that petitioner was not present at Apex

Courier, Delhi i.e. the site where alleged raid and seizure was effected on

19.01.2019.

8. Learned counsel further submits that as per panchnama, seized

psychotropic medicines are as follows:

S.  Name     of Manufacturer              Batch No.    Total        Total No
No. Medicine    Address                                Number       of Tablets
                                                       of Strips    @      10
                                                       (Nos.)       Tablets in
                                                                    Each
                                                                    Strip
1.    Alprazol          Mauza Ogli, Suketi DVNTD27     500          5000
                        Road, Kala-Amb, 9
                        Distt.-Sirmour
                        (H.P.), Pin Code:
                        173030.
2.    Zolpidem          M/s JPEE Drugs, JDT3693        500          5000
      Tartrate          Sector-6A,      Plot
3.    Zolpidem          No.53,     SIDCUL, JDT3693     4400         44000
      Tartrate          Ranipur, Haridwar-
4.    Zolpidem          249403,              JDT3692   100          1000
      Tartrate          Uttrakhand, India
      Total                                            5500         55000

9. Accordingly, in order to further investigate the matter regarding to

whom the manufacturer had sold the medicines, NCB team sent letters to

the manufacturers of medicines vide their letters to:

a. M/s JPEE Drugs vide letter No.VIII/04/DZU/2019/628 dated

15.03.2019 (Annexure 53 on page 262 of main chargesheet).

b. Director, Digital Vision vide letter No.VIII/04/DZU/2019/627 dated

15.03.2019 (Annexure 54 on page 263 of main chargesheet).

10. M/s JPEE Drugs replied on 26.03.2019 that they have sold the

medicines to M/s J P Medical Agencies, 25, Sant Singh Suri Market,

Fountain Agra. They had also enclosed copy of the invoices and other

documents in support of their letter dated 26.03.2019. (Annexure 58 on

page 310 of main chargesheet). Thereafter, NCB sent a letter to M/s J P

Medical Agencies vide letter No.VIII/04/DZU/2019/1787 dated 05.07.2019

asking them to submit details of Agency/Persons to whom the medicines

were subsequently sold. (Annexure 72 Page 349 of main chargesheet).

11. It is not on record to whom J P Medical Agencies (recipient of

medicines from manufacturer M/s JPEE Drugs) have sold these medicines,

as the letter has not been responded by M/s J P Medical Agencies. Even the

Letter sent to M/s Digital vision remains un-replied. There is nothing on

record to show that Mohan (petitioner herein) had ever purchased any of the

above medicines.

12. Learned counsel submits that petitioner is an Ex-Army Officer, who

took voluntary retirement from Indian Army after serving 18 ½ years and

got discharged by Indian Army on 20.11.2018 and joined S M Couriers, just

two months prior to implication in the present case. While serving in the

Indian Army, petitioner was awarded Chief Integrated Defence Staff

Commendation certificate for his contribution to the Indian Army. Besides

that, he has also been associated in Operation Shaurya, a counter insurgency

operation in North East. He does not have any criminal history, however,

prosecution with malafide and mischievous intention has labeled petitioner

as Kingpin for committing above-stated offence, despite the fact that

recovery has not been effected from him and no money trail has been found

which implicates him.

13. It is further submitted that petitioner was granted interim bail on

10.04.2019 on ground of ill-health of his wife due to her accident and

thereafter, extension of bail was rejected vide order dated 02.07.2019. The

interim bail was again allowed on 17.01.2020 due to death of his father and

he surrendered on the expiry of interim bail on 01.02.2020. Thus, it is

clearly established that petitioner has never misused or violated his interim

bail and diligently obeyed the orders of court of law.

14. When no recovery, no money trail, no incriminating evidence have

been affected against petitioner, the question of any bar for grant of bail, as

provided under section 37 of NDPS Act does not apply against petitioner.

15. Learned counsel for petitioner has relied upon the case of Kashmir

Singh vs. NCB: MANU/DE/9207/2006, wherein this Court vide order dated

18.08.2006 has categorically mentioned that bail can be granted even if

section 37 of NDPS Act is operational after satisfying the conditions laid

down in the said judgment. Learned counsel submits that the present case is

perfect and securely covered under the judgment.

16. He further relied upon the case of Noor Aga vs. State of Punjab:

(2008) 16 SCC 417, whereby Hon'ble Supreme Court has observed as

under:

"Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to

prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."

17. Moreover, in the case of Dalip Singh @ Langda vs. The State (NCT

of Delhi) in Bail Appln.1312/2018 delivered on 14.01.2019 this Court held

as under:

"11. On perusal of the record, it is prima facie seen that there are two major missing links in the case of the prosecution. There is no link established by the prosecution between the petitioner with the alleged supplier Manoj. Further the entire case of the prosecution, in so far as petitioner is concerned is circumstantial i.e. based solely on disclosure statement of a co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts. Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner."

18. On the other hand, learned counsel for the respondent submits that

unless and until the petitioner meets the embargo of section 37 of the NDPS

Act, there is all possibility and likelihood that petitioner will indulge in the

same kind of activities which are detrimental to the interest of society at

large. However, petitioner has not shown any reasonable ground for

believing that he was not guilty of such offence and he is not likely to

commit any offence while on bail and as such, the present petition is liable

to be dismissed.

19. In addition to above, petitioner is actively involved in abetment and

criminal conspiracy for commission of offence in this case. The complicity

is apparent and admitted in the statements of petitioner and other accused

persons recorded under section 67 of the Act which is admissible piece of

evidence. There is recovery of commercial quantity of psychotropic

substance and one person namely Lallan, pick up boy of M/s S.M. Courier

company was sent by accused Birpal to collect the parcel and the same was

to be sent to U.S.A. During investigation, it was revealed that accused Birpal

in conspiracy with other accused persons including the petitioner was doing

illegal business of trafficking of psychotropic substance. The parcel

containing psychotropic substance was collected by pick-up boy Lallan from

the Manager of Apex Courier on 19.01.2019. The act and role of all accused

persons including petitioner surfaced and on the basis of sufficient material

to show that all accused persons including petitioner were in criminal

conspiracy and accordingly, they were arrested in this case and on

completion of investigation, a detailed chargesheet supported with relevant

documents and material was filed before the Ld. Trial Court and the Ld.

Trial Court was pleased to take the cognizance committed by accused

persons in this case.

20. It is further submitted that all accused persons are involved in

criminal conspiracy as the offence is being committed with involvement and

assistance of accused persons. In the present case, petitioner is actively

involved in criminal conspiracy and abetment for commission of offence of

this case thereby petitioner was also in constructive and conscious

possession of the seized contraband mentioned above. It is admitted fact that

petitioner was incharge of day-to-day business of M/s S.M. Courier and as

such, offence in present case has been committed with consent, connivance

and knowledge with criminal conspiracy of accused persons. Co-accused

Brij Bhushan Bansal has stated in his statement under section 67 of NDPS

Act that in the year 2005, a case under NDPS Act was registered against him

in Agra and the said case is still pending in Trial Court and he is on bail in

that case. He met petitioner about 3 years back in Agra and further stated

that he again met him about three months back and told him that he would

supply some packets and send the same to him through courier in Delhi and

accordingly he sent the packets on three different dates to petitioner and he

also received a sum of Rs.2 lac through Hawala at Agra from Delhi.

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

available on record.

22. As stated in the present case, the petitioner joined the courier

company namely M/s S.M. Courier only two months prior to the incident as

Director as there is nobody to look after the day-to-day business of the

company and was learning the business. 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."

23. In the case of Kashmir Singh (supra), 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.

24. 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.

25. On perusal of the impugned order, this Court is of view; learned Trial

Court has erred in not observing that 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 (annexed

herein as Annexure A-7) 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 that 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, but Ld. Trial Court for reasons unknown

did not take notice of the same and passed the order dismissing Bail

Application of petitioner.

26. 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 the

office of the courier company at Delhi.

27. In addition to above, statement of petitioner and his sister Ms.

Sandhya Sharma seems to be twisted by NCB in their complaint for the very

simple reason that Ms. Sandhya Sharma has nowhere stated in her statement

before the NCB under section 67 of the NDPS Act that she was dealing with

drugs which are not covered under NDPS but to the contrary, NCB has

twisted her statement by submitting that "She received only the Whatsapp

messages containing drugs which are not covered under NDPS Act, whereas

accused Mohan Kumar used to receive Whatsapp messages on his phone

containing drugs which are covered in NDPS." Furthermore, petitioner has

nowhere admitted that drugs were being sent by him and in fact, statement

of petitioner would prove that he was never in the mental state of illegal

trafficking of drugs. It is pertinent to mention here that Ld. Trial Court did

not even refer to the statements of Ms. Sandhya Sharma and petitioner,

recorded under section 67 of NDPS Act, before passing order of dismissal of

Bail Application.

28. 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.    DISTRIBUTOR        NAME, BILL NO.          BATCH           QUANTITY
NO.   ADDRESS,           EMAIL,                  NO.             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
      FOUNTAIN AGRA-282003        &
      GOWDUN F-50 SITE C          JD/0604/12
      INDUSTRIAL        AREA,     DATE
      SIKANDRA AGRA-7 (U.P.)      31.12.2018
      DL.NO. 51GR/20B/2011 &
      51AGR/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
      FOUNTAIN AGRA-282003        &
      GOWDUN F-50 SITE C          JD/0620/01/
      INDUSTRIAL        AREA,     DATE
      SIKANDRA AGRA-7 (U.P.)      09.01.2019
      DL.NO. 51GR/20B/2011 &
      51AGR/21B/2011
      NEW LICENSE NO. AGA-
      2016/20B/00046,    AGA-
      2016/21B/00046,   VALID
      UPTO- 19/10/2021.

29. 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.

30. Thus, from the record, it is not established that how the petitioner is

connected with the consignment in question except the bare allegations

made by Dr. Brij Bhushan Bansal, who himself is accused and the disclosure

statement of accused is not admissible in law against another co-accused

unless and until it is substantiated by recovery/material on record.

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

from the petitioner either for substance or money trail. Petitioner had retired

from Indian Army just three months prior to the alleged incident. It seems

that the above-named doctor has shifted the onus of the offence on petitioner

due to the reasons best known to him.

32. 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

being passed in bail application, therefore, without commenting on the

merits of the prosecution case, the petitioner deserves bail who is in judicial

custody since 02.07.2019.

33. Accordingly, the petitioner shall be released on bail on his furnishing

personal bond in the sum of ₹25,000/- with two sureties of the like amount

to the satisfaction of the Trial Court.

34. 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 prosecution case. The Trial Court shall not get influenced by the

observations made by this Court, while passing the final orders in the trial.

35. The present petition is allowed and disposed of.

36. Copy of this order be transmitted to the Jail Superintendent and the

Trial Court concerned for compliance.

37. Order dasti under signatures of the Court Master.

(SURESH KUMAR KAIT) JUDGE MARCH 23, 2020 ab