Delhi High Court
Mohd. Hanif vs Narcotics Control Bureau on 12 April, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 10.01.2022
% Pronounced on : 12.04.2022
+ BAIL APPLICATION NO. 1339/2021
MOHD. HANIF ..... Petitioner
Through: Mr. Kanhiya Singhal, Advocate.
Versus
NCB ..... Respondent
Through: Mr. Subhash Bansal, Sr. Standing
Counsel with Mr. Shashwat Bansal,
Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. This is a petition filed by the petitioner under Section 37 of the NDPS
Act, 1985 seeking regular bail in SC No. 37/2017 in Case No.
VIII/15/DZU/2016 under Sections 21/23/29 of the NDPS Act, 1985.
2. In brief the facts of the case are that that a parcel with commercial
invoice no. 9479924042 was booked on 25.07.2016 at DHL Express Pvt.
Ltd. Trinidad & Tobago in the name of Abdul Rehman, House No. E-353,
Khadda Colony Extn., Jaitpur, Badarpur, New Delhi-110044, India. The said
Parcel was intercepted and seized on 27.07.2016 at Gatwick Airport, UK.
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:12.04.2022
16:31:57
On 28.07.2016, Narcotics Control Bureau received a request from National
Crime Agency UK for controlled delivery of said parcel. Consequent to
request from National Crime Agency, UK, Director General NCB authorised
ZonalDirector, DZU who further authorised Sh. Rajeev Sehrawat, IO to
undertake the controlled delivery in coordination of NCA, UK as per the
provisions of section 50A, NDPS Act. On 03.08.2016, the Parcel was
received by authorised I.O. at New Delhi. Further, 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 Mohd. Hanif (Petitioner herein) in
the presence of public witnesses. Accused Abdul Rehman made a call to
Mohd. Hanif and accused Hanif 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, accused
Hanif admitted that he had asked Abdul Rehman to receive said parcel on
his behalf. Accused Hanif further revealed that he received the said parcel
on instructions of Bartholomew Okoh @ Prince in the presence of public
witnesses. Accused Mohd. Hanif made a call to accused Bartholomew Okoh
@ Prince on which he told Mohd. Hanif to come at Janak Puri flyover, near
Janakpuri Distt. Center to deliver the parcel. Bartholomew Okoh @ Prince
was waiting at Janakpuri flover near Distt. Centre to take the delivery of said
parcel and he was intercepted while taking the delivery of the said parcel of
controlled delivery operation at Janakpuri Flyover near Janakpuri Distt.
Center. On checking the said parcel, 500 grams of Cocaine was recovered
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:12.04.2022
16:31:57
from the foot massager concealed in two round shaped packets. The
contraband was seized as per procedure. Hence, the instant Case No.
VIII/15/DZU/2016 under Sections 21/23/29 of the NDPS Act was lodged.
3. I have heard the learned counsel for the petitioner, learned Sr.
Standing Counsel for respondent and perused the status report filed by the
respondent.
4. It is submitted by the learned counsel for the petitioner that the
petitioner has been falsely implicated and is in judicial custody since
06.08.2016 and has undergone about 4 years 9 month. It is further submitted
that the prosecution has examined only 7 witnesses till date and the trial will
take a long time to conclude. It is further submitted that the petitioner was
arrested only on the pointing out of other co-accused (Accused no. 3) Abdul
Rehman herein and no actual contraband was recovered from the petitioner.
It is further submitted that apart from retracted confession of accused
persons, there is no material or evidence against the petitioner, moreover,
the present case is of a control delivery, which has not been undertaken by
an authorized person as section 50A stipulates that 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. It is further
submitted that 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. It is further
submitted that neither the Director General nor the Zonal Director has been
cited as a witness and even the official of National Crime Agency and pilot
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:12.04.2022
16:31:57
of British Airways, who had informed and handed over the control delivery
have also not been cited as witness by the prosecution. Ld. counsel for the
petitioner has placed reliance on Tofan Singh vs. state of Tamil Nadu in
Criminal Appeal no. 152 of 2013 dated 29th October 2020.
5. On the other hand, learned Sr. Standing Counsel for respondent
submitted that the recovered contraband from the parcel is 500 grams of
Cocaine, which is of commercial Quantity. It is further submitted that,
Mohd. Hanif/petitioner alongwith other accused persons have admittedly
indulged in trafficking/import and possession of contraband- commercial
quantity of 500 gms of Cocaine in conspiracy with each other and thus, the
embargo under section 37 NDPS Act shall be applicable. It is further
submitted that the trial is under process and that the public witnesses had
witnessed the proceedings and the operation of controlled delivery, hence,
they are crucial witnesses in the case, who are yet to be examined under
trial. It is further submitted that the voluntary statements tendered under
section 67 NDPS Act have been written by accused in their own hand-
writing and admitted the factum of deeds as per their own knowledge, which
further corroborates the recovery of contraband in the manner accused
persons have dealt-with. It is further submitted that as per the voluntary
statement tendered under section 67 NDPS Act by Mohd. Hanif, he has
admitted to using the mobile no. 8510072976 and as per Call-data record
(CDR) Mohd. Hanif (Mobile no. 8510072976) was in constant touch with
Abdul Reliman (Mobile no. 7011600510) and Bartholomew Okoh @ Prince
(Mobile no. 8826039442) on 04.08.2016 and 05.08.2016 for the purpose of
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:12.04.2022
16:31:57
obtaining delivery of said parcel containing contraband. It is further
submitted that there are relevant entries in the CDR showing conversations
between Hanif, Prince and Abdul Rehman and from the CDR, it is revealed
that the accused Hanif was in constant touch with other accused persons. It
is further submitted that in the previous bail application of present
petitioner/accused, namely, Mohd. Hanif vs. Narcotics Control Bureau
(Bail Appl. No. 307 of 2019), decided on 24.06.2020, this Court after
having gone through the facts, circumstances and grounds, was pleased to
dismiss the said bail application of accused with detailed observations qua
his involvement in conspiracy for the offences charged against him as well
as keeping in view the totality of the facts and circumstances of the case,
nature of allegations and the material on record. It is further submitted that
all the contentions raised by the petitioner herein have already been dealt
with by this court in the previous order dated 24.06.2020 and dealing with
the same in the present application would be an abuse of process of law as
there is no change in the circumstances since dismissal of the previous bail
application. It is further submitted that since the trial is yet to conclude, any
observations qua the evidential facts of the case shall vitiate the sanctity of
criminal-trial proceedings. Learned Sr. Standing Counsel for respondent has
placed reliance on State of Kerala Etc. vs. Rajesh Etc. (2020 SCC Online
SC 81), wherein, the Hon'ble Supreme Court has categorically interpreted
the mandate and rigors of section 37 NDPS Act, and thereby denied for
grant of bail to accused person. Reliance is also placed upon Collector of
Customs v. Ahmadalieva Nodira, [(2004) 3 SCC 549] and Union of India
vs. Rattan Malik, [(2009) 2 SCC 624].
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:12.04.2022
16:31:57
6. Learned Sr. Standing Counsel for respondent has laid much emphasis
upon the order dated 24.06.2020 vide which the previous bail application
filed by the present petitioner was dismissed by this court after careful
consideration of the facts and circumstances of the case, nature of
allegations and the material on record, with detailed observations qua his
involvement in conspiracy for the offences charged against him. It is
pertinent to note that all the contentions raised hereinabove by the learned
counsel for the petitioner have already been dealt with and comprehensively
discussed and findings in this regard have also been given by this Court vide
order dated 24.06.2020. The contentions raised in the present matter appear
to be a replica of the contentions raised in the previous bail application and
the same stands threadbare discussed vide the aforesaid order. There is no
change in the circumstances since dismissal of the previous bail application
except of the fact that one more year has elapsed. In view of the above, the
bail application is devoid of any merit and therefore, deserves to be
dismissed.
7. However, learned Trial Court shall make all endeavours to expedite
the trial.
RAJNISH BHATNAGAR, J
APRIL 12, 2022/ ak
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:12.04.2022
16:31:57
