Delhi High Court
Gaurav Mendiratta vs Narcotics Control Bureau on 7 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 26th August, 2021
Decided on : 7th February, 2022
+ BAIL APPLN. 1610/2021
GAURAV MENDIRATTA ..... Petitioner
Represented by: Mr.Sumit Sharma, Advocate.
Versus
NARCOTICS CONTROL BUREAU .... Respondent
Represented by: Mr.Rajesh Manchanda, Special P.P.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition, the petitioner seeks bail in Sessions Case No.
335/2019 under Sections 22 and 29 of the NDPS Act instituted on the
complaint of the respondent.
2. Learned counsel for the petitioner contends that the petitioner has
been falsely implicated in the present case. Co-accused Mohan Kumar and
Birpal have already been granted regular bail by this Court vide orders dated
23rd March 2020 and 6th August 2020 respectively, hence, the petitioner is
also entitled to be released on bail. While granting bail to Mohan Kumar
and Birpal, this Court noted that there is no recovery from the said accused
and the only evidence against them is the statement under Section 67 of the
NDPS Act. While granting bail to Mohan Kumar, this Court did not rely
upon the prosecution version that the parcel originated from Agra in view of
the consignment slip marked as Annexure-5 on page 70 of the charge sheet
which showed the address of the courier company i.e. Apex Courier at
Mahipalpur, Delhi. Further, there is no mention of any consignment slip in
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
1 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
the seizure memo or the panchnama in the main charge sheet. The Court
also noted the difference in the colour and weight of the samples taken and
sent to the laboratory. The alleged consignment Note No. 20235315 was
generated in Delhi and not Agra. The total weight of the parcel was 25.460
kg and the weight of the contraband was 21.960 kg. By no stretch of
imagination, the packing material can be equivalent to 3.5 kg. No calls or
chats have been found between the petitioner or the co-accused or any other
person. Nothing incriminating was recovered from the premises of M/s.
Golden Belly Farms, Uttar Pradesh. Statement of the petitioner recorded
under Section 67 of the NDPS Act was not voluntary as the same was taken
after continuous custody with NCB officials and had been retracted at the
earliest opportunity and in any case, cannot be relied upon in view of the
decision of the Hon'ble Supreme Court reported as (2021) 4 SCC 1 Tofan
Singh Vs. State of Tamil Nadu.
3. It is further contended that the prosecution has surreptitiously chosen
to make Satpal who was working in 'Welcome Courier' as a witness and not
an accused even though the money was substantially paid by Satpal to co-
accused Brij Bhushan Bansal and he was in contact with the said accused
and both of them knew each other for the last 4-5 years. Further, even as per
Satpal, the main accused Brij Bhushan Bansal indulged in similar
transactions earlier also. There are material differences in the statements of
the various accused and witnesses recorded under Section 67 of the NDPS
Act which go to the root of the matter. The petitioner has been in custody
since 22nd January 2019 and the trial is likely to take some time. There is no
recovery of contraband nor any money trail has been found from the present
petitioner. The petitioner has a previous enmity with the respondent as he
was falsely implicated earlier also and in one case, he has been acquitted and
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
2 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
in another case, he is on bail. The petitioner is 75 years old and suffering
from various life threatening diseases due to which, the petitioner was
granted interim bail and he surrendered on 20th March 2021 which
concession he did not misuse. The petitioner be thus released on bail.
4. Learned Special P.P. for the NCB states that the petitioner is involved
in the commission of offence relating to commercial quantity of 5000 tablets
of Alprazolam weighing 1 kg and 50000/- tablets of Zolpidem weighing
12.500 kg which are psychotropic substances as per the Schedule of NDPS
Act and in view of the embargo of Section 37 of the NDPS Act, the
petitioner be not released on bail as he has been earlier involved in two
NDPS Act cases with recovery of commercial quantity of contraband. The
chats and Whatsapp messages exchanged between accused Brij Bhushan
Bansal and Birpal clearly shows the larger conspiracy in which illicit
trafficking of commercial quantity of contraband was committed by all the
accused persons. From the CAF details and the CDR of the respective
mobile numbers received from concerned service providers, it is evident
that all the accused were interconnected by mobile phones. Accused Brij
Bhushan Bansal and the petitioner were connected on one side and the
accused Birpal, Mohan Kumar with Brij Bhushan Bansal on the other side.
There are no contradictions in the statements of the various accused persons
recorded under Section 67 of the NDPS Act. The contraband was recovered
from two packets in one parcel as informed by secret informer. Satyapal
was working in the transport business, thus was in touch with the people
working in transport business and was not involved in the illegal activity of
commission of offence and hence, was not made an accused.
5. It is contended that there is no parity in the role of the petitioner and
the accused Birpal and Mohan Kumar, for the reason, Brij Bhushan Bansal
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
3 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
and the petitioner were on one side procuring the contraband from the open
market illegally. The recovered tablets of contraband were purchased
illegally in Agra as is evident from the batch numbers of the tablets which
batch numbers of tablets were available in Agra. The contraband was sent
from Agra to Delhi which is evident from the messages and Whatsapp chats
data retrieved from the mobile phone of accused Birpal with which accused
Brij Bhushan Bansal was also confronted. The petitioner and Brij Bhushan
Bansal are partners in Pig farming and under the garb of said business, were
also indulging in illegal trafficking of narcotics drugs and psychotropic
substances. The role assigned to Mohan Kumar and Birpal who have been
granted bail is not similar. Hence, no bail be granted to the petitioner.
6. Case of the respondent in the complaint in brief is that on 19 th January
2019, a consignment was intercepted at Apex Courier, Mahipalpur, Delhi
which contained 5000 tablets of Alprazolam and 50,000 tablets of Zolpidem.
The said consignment had come from Agra to Delhi sent by one Satpal to
Ajay at Mahipalpur, Delhi which was collected by Lallan, pick up boy of
M/s. S.M.Courier Company. On the consignment being opened, it was
found to be containing a transparent polythene bag addressed to WYNN
Industries, USA. According to Lallan, he was sent to collect the parcel by
Birpal. Statement of Birpal was recorded under Section 67 of the NDPS Act
wherein, he disclosed that Ms. Sandhya Sharma and Mohan Kumar were the
Directors of M/s. S.M.Courier and Cargo Private Limited (in short, 'SMC')
and they provided him two mobiles phone bearing Nos. 9599008336 and
9599351207 which he used for the purposes of collecting the rates and for
delivery and collection of parcels.
7. Mohan Kumar was connected with Brij Bhushan Bansal and on a
whatsapp message received from Brij Bhushan Bansal, Mohan Kumar sent
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
4 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
pictures of the drugs and used to sent Lallan to collect the parcels from Apex
Courier through Om Prakash. The drug parcel used to be collected on the
order of Mohan Kumar and was to be kept in the office. Payment of the
drug was made to Brij Bhushan Bansal through Sandhya Sharma and Mohan
Kumar.
8. Brij Bhushan Bansal in his statement recorded under Section 67
NDPS Act stated that he was already facing trial under NDPS Act at Agra
and met Mohan Kumar three months back in Sadar Bazar, Agra. Brij
Bhushan Bansal stated to Mohan Kumar that he would supply the three
packets at Delhi through courier. In lieu of the said packets, Mohan Kumar
received ₹2 lakhs through hawala at Agra. On 18th January, 2019, on the
asking of Mohan Kumar, two parcels were sent in the name of Ajay through
Satpal having address of USA. The said packets were taken from the house
of Mohan Kumar and duly informed to the employee of Mohan Kumar. It
was also revealed that Alok, an employee of Mohan Kumar and Birpal was
the same person.
9. Mohan Kumar, in his statement, under Section 67 of the NDPS Act
stated that he was one of the Director of SMC besides Sandhya, his sister-in-
law and Birpal was working in their company for the last 1½ years. He
stated that Brij Bhushan Bansal met him three years ago at Agra. He used to
send medicines containing psychotropic substances which medicines were
forwarded to him. However, he had no clue about the nature of medicines.
10. The petitioner was also arrested and his statement under Section 67 of
the NDPS Act was recorded wherein, he stated that he took parcels of
medicines given by accused Brij Bhushan Bansal at Agra and delivered the
same to Satpal for being sent to Delhi in his car.
11. It was thus revealed in investigation that the accused Brij Bhushan
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
5 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
Bansal, Gaurav, the present petitioner, Mohan Kumar and Birpal were
involved in illegal trafficking of psychotropic substances through courier
services. The complaint has been filed by the respondent against these four
accused.
12. Allegations of the prosecution against the petitioner are that the
petitioner is connected with the main accused Brij Bhushan Bansal, that they
were doing the business of pig farming together and in the garb of the said
business were indulging in supply of narcotic drugs and psychotropic
substances. Undoubtedly, no recovery has been made from the petitioner.
While granting bail to Mohan Kumar, it was noted that though the case of
the NCB was that alleged parcel was dispatched from Agra, however, the
address of the courier company i.e. Apex Courier, Mahipalpur, Delhi clearly
showed that the consignment note No. 20235315 was generated at Delhi and
not at Agra. This Court has perused the copy of the consignment note No.
20235315 dated 18th January 2019 wherein, the place of origin has been
noted as Agra and the destination at Delhi, the consigner is Satpal, Agra and
the consignee is Ajay, Mahipalpur, Delhi.
13. The other evidence available with the prosecution against the
petitioner is the statement of the witness Satpal, who stated that on 18th
January 2019, he received a phone call from Dr. Brij Bhushan Bansal that he
was sending two parcels to be sent from Apex Courier, Agra to Ajay,
Mahipalpur, Delhi. Dr. Bansal stated that his person will come in a white
Honda City Car No. 3003 with the parcels and the same be given in Apex
Courier. Satyapal told him that these parcels be given to Apex Courier and
he will tell Danish, who is working in Apex Courier. The parcels were
received at the Apex Courier in the afternoon. He told Danish on his mobile
to send the two parcels to Apex Courier, Mahipalpur. Dr. Brij Bhushan
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
6 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
Bansal told him that his person will pick the parcels at Delhi. The two
parcels weighed approximately 25.500 kg. Danish told him that the expense
for the parcels would be ₹520, to which Satpal replied that he would give
him the next day. On 19th January, 2019 Dr. Bansal asked him about the
parcels. After inquiring from Danish, he informed Dr. Bansal that his
person has taken from Apex Courier. He stated that Dr.Bansal had sent two
parcels in October and November, 2018 to Apex Courier, Mahipalpur. In his
statement, Satpal also stated that Dr. Bansal and Gaurav Mendiratta, the
present petitioner had opened a pig farm and the car number 3003 Honda
City was the car of Gaurav Mendiratta, in which Dr. Brij Bhushan Bansal
had sent the parcels.
14. Admittedly, no recovery has been affected from the petitioner.
Though in the statement of the petitioner recorded under Section 67 of the
NDPS Act it is noted that that the petitioner in his Honda City Car No.3003
gave the parcels to Satpal for being sent to Delhi, the same being not
admissible in evidence in view of the decision of the Hon'ble Supreme Court
in Tofan Singh (supra), the statement of Satpal only indicates that the car
number of the petitioner was given and that the parcels will be sent in the
said car. As per Satpal, the parcels were given to Danish and on Dr.Bansal
asking about the parcels being received and sent, he inquired from Danish
who said that the same were taken by Dr. Bansal's man from Apex Courier.
No statement of Danish has been recorded to show that the petitioner has
handed over the two parcels to him in his Honda City Car No.3003. Thus
the allegations at best against the petitioner is that number of his Honda City
Car was used for sending the parcels to the courier agency at Agra. In the
absence of the statement of Danish, as per the complaint filed by the
respondent who is not a witness and there is no evidence against the
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
7 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
petitioner except the inadmissible statement of the petitioner himself that he
delivered the parcels to Danish. Further claim of the respondent is that the
petitioner was in touch with the main accused Dr.Brij Bhushan Bansal as per
the call detail records. It is the case of the respondent itself that Dr.Brij
Bhushan Bansal and petitioner were partners. Hence the contact between
the main accused as established through the call detail records does not
show the complicity of the petitioner in the present case.
15. Learned counsel for the respondent invokes Section 37 NDPS Act and
contends that the petitioner was earlier also involved in an offence under the
NDPS Act titled as 'NCB Vs. Deep Chand and Anr.', in complaint No.
VIII/034/DZU/2018. In the said case wherein the petitioner is presently on
bail, Dr.Bansal had sent the contraband through the same courier agency i.e.
Apex Courier of Agra through Satpal, Danish and Om Prakash and the other
persons involved in the chain were Deep Chand Kumar, Bobby, Tapish
Kumar, Dheeraj Jain and Virender Singh.
16. Section 37 NDPS Act reads 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
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
8 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
the time being in force, on granting of bail."
17. As noted above, before the Court grants bail to an accused allegedly
involved in an offence under the NDPS Act, the Court required to be
satisfied that the accused is not guilty of the offence and that he will not
involve himself in an offence under the NDPS Act while on bail.
18. Though the petitioner is involved in an earlier offence and is facing
trial therein, however, as noted above, he has been granted bail in the said
case and in the present complaint, even the witness Satpal does not say that
the petitioner delivered the parcels to him nor is the statement of Danish
recorded who could identify the person who delivered the contraband to
him. The petitioner has been in custody since January, 2019 and considering
the evidence against him, this Court deems it fit to grant regular bail to the
petitioner pending decision of the trial. Consequently, the petitioner is
directed to be released on bail on his furnishing a personal bond in sum of
₹50,000/- with two surety bonds of the like amount subject to the
satisfaction of the learned Trial Court. Further, subject to the condition that
the petitioner will not leave the country without prior permission of the court
concerned and in case change of address and/or mobile number, the same
will be intimated to the Court concerned by way of an affidavit by the
petitioner.
19. Petition is disposed of. It is clarified that the observations made
hereinabove are only for the purpose of deciding this petition and will have
no bearing on merits during the trial.
20. Copy of the order be uploaded on the website of this Court.
(MUKTA GUPTA)
JUDGE
FEBRUARY 07, 2022/akb
Signature Not Verified
BAIL APPLN. 1610/2021 PageDigitally
9 of Signed
MUKTA 9GUPTABy:JUSTICE
Signing Date:07.02.2022
21:55:06
