Mohammad Akbar vs State
2021 Latest Caselaw 1580 Del

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

                                                    Reserved on: 21.05.2021
                                                 Pronounced on: 31.05.2021
+     BAIL APPLN. 500/2021
      MOHAMMAD AKBAR                                        ......Petitioner
                 Through:               Mr.Amjad Khan, Advocate

                          Versus

      STATE                                                  ......Respondent
                          Through:      Mr. Amit Chadha, Additional Public
                                        Prosecutor for State

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          JUDGMENT

1. Petitioner, who is accused in FIR No. 117/2019, registered at Special

Cell, New Delhi for the offences under Sections 21/25/29 of Narcotic Drugs

and Psychotropic Substances Act, 1985 (henceforth referred to as "NDPS

Act"), is seeking bail by this petition. In the alternative, a prayer is made to

release him on interim bail for 45 days.

2. The case of the prosecution is that on 17.07.2019, upon receipt of

secret information, a raiding team was constituted and after collecting IO

bag, field testing kit, electronic weighing machine and official brass seal of

"SPL CELL NDR 38", the raiding team headed towards ISBT/Majnu Ka

Tila and when they further received secret information that Deepak with his

associates will assemble at 12:30 PM under Ashram Flyover, they reached

there and tried to join two public witnesses, who refused to join the

proceedings due to their own compulsions.

3. At around 12:30 PM two cars bearing registration number DL3C BE

1152 & DL3C AA 8369 came at the place of information, whose drivers

came outside and started talking to each other and as the secret informant

gave signal, the raiding party apprehended both the drivers. They disclosed

their entity as Dheeraj @ Deepak and Rais Khan. Both admitted that they

were carrying heroin with them. From the cavity of their cars, contraband of

30 kg. each i.e. total 60 kg. was recovered. Thereafter, the contraband was

seized, samples were drawn, marking were done, rukka was prepared, the

case property was sent to the Special Cell and samples were sent to FSL for

analysis. Both the drivers/accused- Dheeraj @ Deepak and Rais Khan were

arrested. Upon disclosure of accused Dheeraj @ Deepak, a search was

conducted at House No. 483, Gali No. 21 Zakhir Nagar, Okhla, Delhi on

18.07.2019 and from the said house contraband of 60 kg was recovered and

three persons, namely, Vakeel Ahmad @ Rahul, Rhamat Gul Shinwari &

Akhtar Mohamad were apprehended and two pistols were also recovered &

seized from the said house. In addition, recovery of 30 kg. of contraband

was affected from the car of Vakeel Ahmad.

4. On the disclosure of Rehmat Gul Shinwari, two more persons namely

Mohammad Akbar (present petitioner) and Neda Mohammad were arrested

on 22.7.2019 from JM Cool House Pvt. Ltd, Kondli, Sonepat, Haryana.

Both these persons revealed that they were carrying heroin from

Afghanistan through Atari border, secretly hidden in card board cartons of

dry fruit. This information was conveyed to Sh. Lalit Mohan Negi,

ACP/NDR, for compliance of Section 50 of NDPS Act.

5. Thereafter, in the presence of ACP Lalit Mohan Negi, in compliance

of Section 50 NDPS Act, accused persons disclosed that contraband is

hidden in cartons bearing special mark of "105", filled with Raisin. At their

instance, two polythene packets were recovered embedded in discreet

manner; between the side layers of the cardboard. On further opening of

these recovered packets, it found containing brown substance, in the form of

paste. Similarly, all the cartons were checked with the help of staff and a

total number of 102 cartons on which "105" were written were found. Each

carton was containing two transparent polythene packets, containing

suspicious contraband. These cartons were segregated from other raisin

boxes and marked. On one-by-one checking of both polythene packets,

present in cartons with the help of field-testing kit, it confirmed as "heroin"

in each polythene packet, as purple colour appeared with reagents 'A-1' and

'A-2'. After that, two samples of 50 gm each were taken out from both

polythene packets and each kept in separate small transparent plastic

container and 408 sample pulandas were prepared with the help of doctor's

tape and marked. The remaining packet exhibits were also marked (parent

bag) containing total heroin weighing 29.15 kg and were kept in a separate

plastic container and pulanda. All the exhibits were sealed and the seal was

returned after completion of procedural formalities. During search of Cool

House located at Sonepat, Haryana, further recovery of approximately 49.55

kg. of contraband was made, which was embedded in card box cartons

containing dry fruits bearing special marking, mentioned above.

6. On the next day i.e. 23.07.2019, accused Neda Mohammad revealed

that he works for Mr.Baba Jaan, who is residing in Afganistan, in

connivance with Ahmed Shah @ Nawab. He further revealed that another

person, namely, Ahmad Shah Alokozai @ Hazi @ Nawab is also working

with him and accordingly, after compliance of Section 42 of NDPS Act,

Ahmad Shah Alokozai @ Hazi @ Nawab was arrested on 23.7.2019 from

Lajpat Nagar, but nothing was recovered from his possession. However,

admitted that he works for Baba Jan, who is residing in Afganistan and also

disclosed that a consignment of heroin has already reached at Nhava Sheva

Port, Mumbai. He also disclosed that Baba Jaan manages racket of

contraband in Afghanistan, whereas another person, namely, Tifle Naukhez,

a resident of Okhla, Delhi, manages racket of contraband in Delhi. Both are

the kingpins in their country. He revealed that he acts as a coordinator

between Tifle Naukhez & Baba Jaan.

7. Upon receipt of this information, on 26.7.2019 search was conducted

at JWC Hub, Logistic Part, Shirdhon, Panvel, Maharashtra and a total

number of 264 jute bags containing approximately 130 kg. of heroin were

recovered imbibed/soaked therein.

8. Pertinently, a total of approximately 329.55 kg. of contraband was

recovered in this case and main accused namely Tifal Nau Khez @ Tifaley

was arrested for allowing his premises & vehicles for illegal trafficking of

contraband.

9. There are total nine accused in the FIR in question and name of

petitioner appears at serial No.7 in the charge sheet. Petitioner is in custody

since the date of his arrest on 22.07.2020.

10. At the hearing, learned counsel for petitioner submitted that the trial

court's order dated 61.01.2021 rejecting petitioner's bail application, has

been passed in a callous manner as a mouth piece of prosecution evidence.

Learned counsel submitted that petitioner is an Afgani national, who does

not know English or Hindi and understands only Afgani and he has been

illegally arrested in this case without following the due procedure of law

prescribed under the provisions of NDPS Act.

11. It is submitted that petitioner in judicial custody has been facing

serious medical problems i.e. 'critical grandular hypospadias and urinary

tract infection' and is required to undergo surgery at the earliest. However,

the learned trial court while dismissing petitioner's bail application has

completely ignored his medical condition.

12. Further submitted that allegedly recovery of 49.55 kg of heroin has

been made from godown/factory JM Cool House Private Limited, Kundli,

Sonepat, however, nothing has been recovered from the person of present

petitioner. The investigation in the present case has been conducted in

complete violation of Sections 42 and 50 of NDPS Act inasmuch as the

Investigating Officer had informed the ACP/NDR about Section 50 of

NDPS Act, instead of Section 42 of NDPS Act, as the prosecution case is

silent about it.

13. Reliance was placed upon decision of Hon'ble Supreme Court in

Kishan Chand Vs. State of Haryana 2013 (1) AD (SC) 39 wherein it is

observed that "provisions like Section 42 and 50 of the Act are the

provisions which require exact and definite compliance as opposed to the

principle of substantial compliance. Once there is total non-compliance and

these provisions being mandatory in nature, the Prosecution case must fail".

14. Learned counsel for petitioner further submitted that even the

accused/petitioner was neither informed about his legal rights to be searched

in the presence of Gazzeted Officer/Magistrate, nor any public witness was

asked to join the investigation, which is in clear violation of Statutory

provisions of Section 100 of Cr.P.C.

15. Learned counsel next submitted that the notice under Section 50 of

NDPS Act was served upon the petitioner in language English, whereas

petitioner is a Afgan national and no language interpreter was called to

explain him the provisions of Section 50 of the Act and it is so evident from

the Notice under Section 50, which does not bear thumb impression of

petitioner. Whereas petitioner was made to mark his thumb impression on

all the documents prepared by the Investigating Officer at the spot, which

castes doubt upon the prosecution case and entitled the petitioner to bail.

16. In support of above submissions, reliance was also placed upon

decisions of Hon'ble Supreme Court in Vijaya Sinh Chandubha Jadeja Vs.

State of Gujrat AIR 2011 SC 77 and State of Rajasthan Vs. Parmanand

and Anr. (2014) 5 SCC 345 in support of petitioner's case.

17. Lastly, it was submitted that not only there is non-compliance of

mandatory provisions of NDPS Act but also the fact that no contraband has

been recovered from the person of petitioner and that the only material

against him is disclosure of co-accused. Thus, there are enough reasons to

fatal the case of prosecution.

18. The afore-noted submissions advanced by learned counsel for

petitioner were vehemently controverted by learned Additional Public

Prosecutor for State, who submitted that petitioner is a member of large

syndicate who are involved in the illegal trafficking of contraband across

this country. Learned Additional Public Prosecutor drew attention of this

Court to various parts of charge sheet to show the chain of events via which

petitioner came into picture in the present case. Attention of this Court was

also drawn to the statement of Rehmat Gul Shinwari, on whose disclosure

petitioner was apprehended along with co-accused Neda Mohammad and

49.55 kg of heroin was recovered.

19. Learned Additional Public Prosecutor further submitted that the

accused under the modus used to hide the contraband/heroin in the

containers carrying raisins and as per Bill of Lading, the petitioner was the

exporter. The person in whose name the raison, used as a shield to disguise

the contraband, order placed was identified as Charan Singh who is running

his business at Mahavir Nagar, Tilak Nagar, Delhi. He was examined and

his role found only limited to procuring the raisins only. Moreover, the

importer has also clarified regarding the exporter and he has confirmed that

present petitioner is the exporter.

20. Further submitted that the search and seizure of the contraband was

carried out after following due procedure prescribed under various

provisions of NDPS Act and in the presence of public witness/store keeper.

21. Next submitted that the total recovery affected in this case is 329.55

kg and there-being huge commercial quantity, bar of Section 37 of the Act

would come into play and on this ground alone, the petition deserves

dismissal.

22. Further submitted by learned Additional Public Prosecutor that two

co-accused, namely, Ahmed Shah Alokozai and Neda Mohammad, who

were granted interim bail have jumped their bail, are absconding and have

been declared proclaimed offender by the trial court. Similarly, if petitioner,

who is also a Afgan national, if released on bail, there is every possibility of

his absconding from the judicial process of law.

23. Lastly, Additional Public Prosecutor for State submitted that the

reliance placed upon decisions in Vijayasinh Chandubha Jadeja and State

of Rajasthan (Supra) is of no assistance to the case of petitioner, as

necessary compliance under the provisions of NDPS Act has cautiously

been made in this case. Thus, learned Additional Public Prosecutor for State

submitted that this petition deserves to be dismissed.

24. This Court had heard the rival contentions urged by both the sides at

length and perused the material placed on record.

25. It is not in dispute that petitioner along with co-accused Neda

Mohammad, was arrested on 22.7.2019 from JM Cool House Pvt. Ltd,

Kondli, Sonepat, Haryana and further, on their disclosure, 49.55 kg. heroin

was recovered from the said place. After conclusion of investigation, charge

sheet in this case was filed and charge under Sections 21/25/29 of NDPS

was framed against the petitioner. However, petitioner has not challenged

the order of charge.

26. Pertinently, trial has commenced and while considering the bail

application of petitioner, this Court is not required to analyse the minute

details of this case, but has to only prima facie find out whether there are

grounds to believe that necessary and mandatory compliance of various

provisions prescribed under the NDPS Act has been made or not.

27. The first and foremost objection to the case of prosecution, raised by

counsel for petitioner is that investigation in the present case has been

conducted in complete violation of Section 50 of NDPS Act. It is also

pleaded that no language interpreter was called to explain him the provisions

of Section 50 of the Act and it is so evident from the Notice under Section

50, which does not bear thumb impression of petitioner. Attention of this

Court was drawn to the copy of Notice under Section 50 of the Act

(Annexure P-3) served upon the petitioner to show that it did not bear

signatures of petitioner and contents thereof were in language English and

the petitioner was not explained about his legal rights.

28. The learned Additional Public Prosecutor for State refuted the claim

of petitioner while placing on record another copy of Notice under Section

50 of the Act served upon the petitioner to show that the original in the

record of prosecution bears the signatures of petitioner, which can be seen as

under:-

29. A perusal of above image refutes the claim of petitioner that Notice

under Section 50 does not bear his signatures or thumb impression.

30. Further, learned Additional Public Prosecutor for State had also

shown this Court a copy of statement of SI Nehit Phogat, recorded in Inner

Diary, who was present with the team at J.M.Cool House Pvt. Ltd., where

seizure and arrest proceedings were conducted. This statement records the

role attributed to the petitioner in the present case. It is noted therein that

petitioner along with his co-accused Nida Mohd. had visited the J.M.Cool

House Pvt. Ltd during day time but since they were not having the e-bill,

therefore, out pass was not issued in their favour. It also categorically notes

that the accused persons were made aware of their rights at the time of

serving of notice under Section 50 of NDPS Act but they refused to avail

that opportunity. It also notes that accused Rahmat Gul, at whose instance

these two accused, including petitioner were apprehended, explained them

about their legal rights and he only on their behalf replied to the notice

under Section 50 of the Act.

31. The afore-noted contents of statement of SI Nehit Phogat, recorded in

Inner Diary prima facie supports the case of prosecution inasmuch as it

shows that accused Rahmat Gul had played the role of translator /interpreter

for the petitioner and other accused.

32. So far as the plea of prosecution that since total recovery affected is

329.55 kg, which is commercial quantity, therefore, bar of Section 37 of the

Act would apply, the provisions of Section 37 of NDPS Act read as under:-

"37. Offences to be cognizable and non-bailable---

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) ---

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless---

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]"

33. In the case in hand, learned Additional Public Prosecutor for State

has strenuously opposed the present petition for release of petitioner on bail

on the ground that huge commercial quantity of contraband i.e. 329.55 kg.

has been recovered in this case and petitioner is a part of large syndicate and

the modus in which the contraband travelled in the country casts a doubt

upon his credibility. This Court is informed that two co-accused Ahmed

Shah Alokozai and Neda Mohammad, who were granted interim bail, are

absconding and have been declared proclaimed offender by the trial court.

Petitioner is also a Afgan resident and if he is released on bail, there is every

likelihood that he will abscond from trial. Moreover, as per embargo put

under Section 37 of the Act, petitioner is not entitled to bail in the present

case. In addition, this Court finds that at this stage, evidence and material on

record is not required to be pre-judged and parties can establish their case

during trial.

34. As far as the plea of petitioner that no public witness was involved

during search and seizure proceedings and also at the time of personal

search of petitioner, the stand of prosecution is that these proceedings were

conducted in the presence of store keeper of the godown and also that the

recovery was made from godown and not from the personal search of

petitioner. These are disputed questions which can be answered only after

the witnesses are examined and hence, this Court refrains to comment upon

it.

35. The further plea of petitioner that he is suffering from 'critical

grandular hypospadias and urinary tract infection' and requires medical

attention, however, no document like medical prescription etc. is placed

before this Court. Accordingly, this Court is of the considered opinion that it

would be appropriate to direct the Jail Authorities concerned to ensure that

petitioner is provided necessary medical treatment in Jail and if his health

condition requires any urgent treatment or surgery and the same is not

available in Jail Hospital, it be provided from any other Government

Hospital, in custody.

36. With directions as aforesaid, the present petition is accordingly

dismissed while making it clear that any observation made herein shall not

have a bearing on the case of either side.

37. A copy of this order be transmitted to the Trial Court and Jail

Superintendent concerned for information and compliance.

(SURESH KUMAR KAIT) JUDGE MAY 31, 2021 r