Delhi High Court
Shri Taha Toufiq vs Narcotics Control Bureau (Ncb) on 6 October, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 05.08.2021
% Pronounced on : 06.10.2021
+ BAIL APPLN. 1625/2021 and CRL.M.(BAIL) 552/2021
SHRI TAHA TOUFIQ
.......Petitioner
Through: Mr. Rajesh Gupta and Mr.
Harpreet Singh, Advocates.
Versus
NARCOTICS CONTROL BUREAU (NCB)
..... Respondent
Through: Mr. Subhash Bansal, Sr. Standing
Counsel for NCB with Mr.
Shashwat Bansal, Advocate-NCB.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
RAJNISH BHATNAGAR, J.
1. The present bail application has been filed by the petitioner seeking
regular bail U/s 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic
Substances Act, 1995 read with Section(s) 439 & 482 of Cr.P.C. in case No.
VIII/9, 9A/DZU/2020 U/s 8/22/24/25/29 of NDPS Act.
2. Briefly stated, the facts of the case as per the prosecution complaint
are that on 31-01-2020 on basis of secret information, 4200 Tablets of
Zolpidam (1.050 Kg) and 6000 Tablets of Alprazolam (1.200Kg) were
recovered from a parcel bearing No. 535153356 lying at TNT India Pvt. Ltd.
(Fedex Courier) near new Custom House, IGI Airport which was destined to
Great Britain and the recovered contraband was seized as per law detailed in
the panchnama in the presence of independent witnesses and was taken into
safe custody and thereafter the consignor/accused Dipu Singh was
apprehended from Lucknow and from his house, 12,000 Tablets of
Tramadol (4.800 Kgs.) were recovered.
3. During investigation, accused Dipu Singh disclosed the names of
other persons involved in the conspiracy including co-accused Tejas Patel,
Sachin Makade, Barun Chauhan, Bablu Bhagwan Dangre. Further he
disclosed name of Taha Toufiq (present petitioner), his mobile nos.
9889333201 & 7007832196, resident of 485/44, Rafik Enclave, Mohan
Makin, Near Railway Bridge, Daliganj, Lucknow.
4. Consequent upon the recovery from the parcel and from the residence
of accused Dipu Singh and also based on his voluntary statement tendered
under section 67, NDPS Act, having reason to believe that accused Dipu
Singh had admitted of committing an offence under section 8(c) of NDPS
Act, 1985, and punishable under section 22, 25 & 29 of NDPS Act, he was
arrested on 02-02-2020. In follow-up investigations, other accused persons
namely, Tejas Patel, Sachin Makade, Barun Chauhan, Bablu Bhagwan
Dangre had also tendered their voluntary statements respectively, and
seizure of incriminating documents/electronic devices and other evidences
were effected therefrom.
5. The present petitioner Taha Toufique was asked to join the
investigation vide serving Notice dated 24-6-2020. The present petitioner
joined the investigation on 04-08-2020, who revealed that he was in constant
touch with Dipu Singh. The present petitioner in his voluntary statement
tendered under section 67, NDPS Act on 04-08-2020 had admitted that he
was in touch with accused Dipu Singh over phone and through WhatsApp
chat communication by using his mobile No. 7007832196.
6. As per the Status Report filed by the NCB (respondent), the present
petitioner while tendering his voluntary statement had admitted that he used
to provide orders from his clients to Dipu Singh for consideration, and
therefore, he was in constant touch with Dipu Singh over phone and through
whatsapp communication.
7. It is further stated in the Status Report filed by the NCB (respondent)
that during investigations, analysis of mobile of accused Dipu Singh was
done and mirror image was obtained from SIFS. In the mobile phone mirror
image of accused Dipu Singh huge chats regarding NRX medicines and
address of consignee in foreign countries were found. The same chats were
exhibited by petitioner Taha Toufiq. In the chats large number of address
were found to which they were sending NRX medicines as disclosed by the
accused.
8. On the basis of statement and call-details, the present petitioner
Taha Toufiq was arrested under section 24 & 29 of NDPS Act on
4-08-2020. It was found that the present petitioner Taha Toufiq was in
constant touch with co-accused Dipu Singh and there are several
communications through WhatsApp which shows their involvement in illicit
drug trafficking and is a part of larger conspiracy.
9. I have heard the Ld. counsel for the petitioner, Ld. Sr. Standing
Counsel for NCB (respondent), perused the Status Report filed by the NCB
(Respondent) and also perused the records of this case.
10. It is submitted by the Ld. counsel for the petitioner that the petitioner
has been falsely implicated in this case and on being called at the NCB
office, he has been apprehended. It is further submitted by the Ld. counsel
for the petitioner that nothing has been recovered from the petitioner and
also from the search of his house. It is further submitted by the counsel for
the petitioner that the only incriminating evidence against the petitioner is
the mobile phone connection with co-accused Dipu Singh and the said
mobile phone is not at all recovered from the present accused.
11. It is further submitted by him that the statement of the petitioner U/s
67 of the NDPS Act is not admissible in view of the decision in Tofan
Singh Vs. State of Tamil Nadu. He further submitted that the signature of
the petitioner has been obtained on blank papers and the same were later on
converted into documents. He further submitted that the petitioner is in J.C.
since 05.08.2020.
12. It is further submitted by the Ld. counsel for the petitioner that the
mobile phone No. 7007832196, which according to the NCB was being used
by the petitioner from whom he used to chat with co-accused Dipu Singh is
in the name of Sukh Anwar who is not traceable. It is further submitted by
the Ld. counsel for the petitioner that the petitioner after the arrest of Dipu
Singh was called number of times for inquiry but there is no incriminating
evidence against the petitioner/accused on record. He further submitted that
as per the chats, the orders, according to the NCB were given by the
petitioner but there is nothing on record to show that any actual delivery
ever took place. It is further submitted by the Ld. counsel for the petitioner
that the petitioner has been arrested only on the basis of the disclosure
statement which is inadmissible and even nothing has been recovered on the
basis of the disclosure statement of the petitioner.
13. On the other hand, Ld. Sr. Standing Counsel for NCB (respondent)
has argued on the lines of the Status Report and further submitted that on
31.01.2020 on the basis of secret information, 4200 tablets of Zolpidem
(1.050 Kg.), and 6000 tablets of Alprazolam (1.200 Kg.) were recovered
from a parcel bearing No. 535153356 lying at TNT India Pvt. Ltd. (Fedex
Courier) near new custom house IGI Airport which was destined to Great
Britain and the recovered contraband was seized as per law detailed in the
panchnama in the presence of the independent witness and was taken into
safe custody and thereafter the consignor/accused Dipu Singh was
apprehended from Lucknow and from his house, 12000 tablets of Tramadol
were recovered. It is further submitted by the Ld. Sr. Standing Counsel for
NCB (respondent) that during investigation he has disclosed the names of
the other persons involved in the conspiracy.
14. He further submitted that the petitioner tendered his statement U/s 67
of the NDPS Act and admitted his guilt and his involvement with co-
accused Dipu Singh in providing the orders from his clients to co-accused
Dipu Singh. He further submitted that the petitioner was in regular touch
with co-accused Dipu Singh over phone and WhatsApp and there are
various calls and WhatsApp messages.
15. It is further submitted by the Ld. Sr. Standing Counsel for NCB
(respondent) that in WhatsApp communications there is a reference of
medicines covered under the NDPS Act and tracking number of the
consignment sent by them and also the WhatsApp messages between the
petitioner and accused Dipu Singh which shows there involvement in
trafficking of the medicines covered under NDPS Act.
16. He further submitted that in his statement recorded U/s 67 of the
NDPS Act, the petitioner has admitted to the receipt of money in cash from
co-accused Dipu Singh. He further submitted that from the call details and
WhatsApp messages, it is evident that they are involved in trafficking of
medicines.
17. It is further submitted by the Ld. Sr. Standing Counsel for NCB
(respondent) that the petitioner has not produced his mobile phone with an
intention to conceal the evidence against him. He further submitted that on
the basis of the statement, call details and WhatsApp conversations, the
petitioner was arrested and was found to be in constant touch with co-
accused Dipu Singh.
18. He further submitted that the mobile No. 7007832196 used by the
petitioner was in constant touch with co-accused Dipu Singh and the said
number was saved by co-accused Dipu Singh in his mobile as Taha Amity
because the petitioner is a student of Amity University. He further
submitted that the contention of the Ld. counsel for the petitioner that SIM
was not in the name of the petitioner is of no-consequence as the chats
between co-accused Dipu Singh and the petitioner were very frequent and
the number was stored by co-accused Dipu Singh as Taha Amity.
19. He further submitted that IMEI number of the mobile set used for
mobile connection No. 7007832196 was obtained from service provider and
the mobile connection No. 7007832196 was being used in mobile set having
IMEI No. 357328073033890 upto 04.02.2020 and on 04.02.2020 till
05.02.2020 the said SIM card was used in the mobile set with IMEI No.
865166041636630, CAF & CDR of mobile set with IMEI No.
865166041636630 was obtained from the service provider as per which the
mobile set having IMEI No. 865166041636630 was used after 05.02.2020
for mobile connection No. 9076725933 and this mobile connection
(9076725933) is registered in the name of present petitioner/accused Taha
Toufique S/o Mohd. Toufique R/o 485/44, Lucknow, Lakad Mandi, Mohan
Makin Road, Dali Ganj, Lucknow.
20. He further submitted that the location of this number also indicated
that petitioner/accused Taha Toufique was in possession and using the No.
7007832196. This number was in regular contact with co-accused Dipu
Singh which corroborates the involvement of the present/petitioner Taha
Toufique with co-accused Dipu Singh. He further submitted that there is a
recovery of commercial quantity of medicines, hence there is a bar of
Section 37 NDPS Act on the release of the petitioner/accused on bail.
21. In the instant case, no doubt, in view of the decision in Tofan Singh
Vs. State of Tamil Nadu (2021) 4 SCC 1 wherein it has been held that
confessional statement made U/s 67 of the NDPS Act will not be admissible
in evidence but at the same time there is a huge recovery of medicines which
fall under the category of commercial quantity as per NDPS Act. The
petitioner and the co-accused Dipu Singh were in constant touch with each
other which is evident from the call records of the cell phone used by the
petitioner.
22. In the present case, there is a recovery of commercial quantity of
medicines from co-accused Dipu Singh who is also found to be delivering
the medicines illegally over the orders placed through the present
petitioner/accused and both accused are found to be connected through
WhatsApp chat messages as well as through mobile phones. The chat
conversation between the petitioner/accused and Dipu Singh reveals that
they were indulging in supply of the narcotic drugs. The conduct of
petitioner/accused in destroying the SIM before being interrogated by the
NCB officials points towards the guilty mind.
23. As per the investigation, the petitioner/accused was using mobile No.
7007832196 and was in frequent contact with co-accused Dipu Singh. Even
though, the said mobile phone was found in the name of some other person
but was being used by the petitioner as indicated in the investigation.
24. The present case is a case of commercial quantity and the rigors of
Section 37 NDPS Act are applicable. Section 37 of the NDPS Act regulates
the grant of bail in cases involving offences under the NDPS Act. Section
37 reads as follows:
"(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 [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.
(emphasis supplied)
25. Under Section 37(1)(b)(ii), the limitations on the grant of bail for
offences punishable under Sections 19, 24 or 27A and also for offences
involving a commercial quantity are :
(i) The Prosecutor must be given an opportunity to oppose the
application for bail; and
(ii) There must exist 'reasonable grounds to believe' that (a)
the person is not guilty of such an offence; and (b) he is not
likely to commit any offence while on bail.
26. The standard prescribed for the grant of bail is 'reasonable ground to
believe' that the person is not guilty of the offence. Interpreting the standard
of 'reasonable grounds to believe', a two-judge Bench of Supreme Court in
Union of India Vs. Shiv Shanker Kesari (2007) 7 SCC 798 held that:
"7. The expression used in Section 37(1)(b)(ii) is "reasonable
grounds". The expression means something more than prima facie
grounds. It connotes substantial probable causes for believing that
the accused is not guilty of the offence charged and this reasonable
belief contemplated in turn points to existence of such facts and
circumstances as are sufficient in themselves to justify recording of
satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of
reasonable in regard to those circumstances of which the actor, called on
to act reasonably, knows or ought to know. It is difficult to give an exact
definition of the word "reasonable".
"7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that
it would be unreasonable to expect an exact definition of the word
'reasonable'. Reason varies in its conclusions according to the
idiosyncrasy of the individual, and the times and circumstances in
which he thinks. The reasoning which built up the old scholastic
logic sounds now like the jingling of a child's toy."
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar
[(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply
and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1
SCC 532]
[...]
10. The word "reasonable" signifies "in accordance with reason". In
the ultimate analysis it is a question of fact, whether a particular act
is reasonable or not depends on the circumstances in a given
situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills
Ltd. [(2003) 6 SCC 315]
11. The court while considering the application for bail with
reference to Section 37 of the Act is not called upon to record a
finding of not guilty. It is for the limited purpose essentially
confined to the question of releasing the accused on bail that the
court is called upon to see if there are reasonable grounds for
believing that the accused is not guilty and records its satisfaction
about the existence of such grounds. But the court has not to
consider the matter as if it is pronouncing a judgment of acquittal
and recording a finding of not guilty."
(emphasis supplied)
27. Based on the above, the test which is required to be applied while
granting bail is whether there are reasonable grounds to believe that the
accused has not committed an offence and whether he is likely to commit an
offence while on bail. Given the seriousness of the offence punishable
under the NDPS Act and in order to curb the menace of drug-trafficking in
the country, stringent parameters for the grant of bail under the NDPS Act
have been prescribed.
28. As far as the arguments of the Ld. counsel for the petitioner regarding
the absence of recovery of contraband from the possession of the petitioner
is concerned, it cannot be said to be a ground for the non application of
parameters of Section 37(1)(b) of NDPS Act in view of the judgment passed
by the Supreme Court in the case titled as Union of India Vs. Rattan Mallik
(2009) 2 SCC 624 and merely absence of possession does not mitigate the
level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.
29. For the reasons noted hereinabove, the application lacks merit and the
same is, therefore, dismissed. Crl. M.(Bail) 552/2021 is also disposed of
accordingly.
30. Nothing stated hereinabove shall tantamount to the expression of any
opinion on the merits of this case.
RAJNISH BHATNAGAR, J
OCTOBER 06, 2021
Sumant
