Delhi High Court
Mohd Akhtar @ Raja vs State Of Nct Of Delhi on 28 September, 2022
#
IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on: 13.09.2022
Order delivered on: 28.09.2022
+ BAIL APPLN. 84/2022
MOHD AKHTAR @ RAJA ..... Petitioner
Through: Mr. Vikas Gautam, Advocate.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr.Aman Usman, APP for State.
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
ANOOP KUMAR MENDIRATTA, J.
1. An application has been preferred on behalf of the petitioner under
Section 439 Cr.PC for grant of regular bail in FIR No.63/2015 under
Sections 18/21/25/29 of the NDPS Act, 1985.
2. In brief, as per the case of the prosecution, during monitoring of
interception of mobile numbers, suspectedly used by drug peddlers, it was
revealed that members of drug syndicate are in touch with each other and
indulge in drug trafficking in Delhi, Punjab, J & K and Rajasthan. Further,
on receiving secret information on 18.11.2015, a trap was laid at Burari
crossing where Durgesh @ Mangal handed over a packet containing 1 kg
white coloured heroin to Harjinder Singh. Both of them were apprehended
and 1 kg heroin was recovered from the scooty of Durgesh @ Mangal at the
spot. The Verna car used by Harjinder and the scooty used by Durgesh @
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By:DINESH CHANDRA
Signing Date:01.10.2022
16:09:07
Mangal were seized at the spot. Also, many mobile numbers and sim cards
including 8558054298, which was under interception were seized. Further,
accused Durgesh @ Mandal disclosed that he along with Mohd. Akhtar @
Raja (petitioner herein), a resident of Jafrabad, Delhi used to supply narcotic
drugs to various drug suppliers in Delhi and Punjab. He also disclosed that
Mohd. Akhtar @ Raja used to get supply from one Sehzad as well as from a
Nigerian national in Vikaspuri. He also disclosed that Mohd. Akhtar @ Raja
had kept huge quantity of heroin, opium and alprazolam at his rented house
in Laxmi Nagar, Delhi. Accordingly, on the house search of Durgesh @
Mangal at 1/184, Laxmi Nagar, 2 kgs of opium and 1kg alprazolam were
recovered at the instance of Durgesh @ Mangal. During investigation, Ubah
Casmir Amobi, a Nigerian national was arrested on 19.11.2015 from Vikas
Puri at the instance of Durgesh @ Mangal and 300 gms of heroin was
recovered. Further, on disclosure of Durgesh @ Mangal, Ashwani @ Abu
Bakr was arrested on 20.11.2015 near Seelampur, Delhi wherein he came to
receive a consignment of heroin from Mohd. Akhtar @ Raja. One swift car
along with 3 mobile handsets and many sim cards were recovered from
Ashwani @ Abu Bakr. Also 500 gms of heroin was recovered from the
house of Ashwani @ Abu Bakr at Punjab.
During investigation, Mohd. Akhtar @ Raja was arrested from Darya
Ganj on 25.11.2015. On 27.11.2015, after taking police remand, 525 gms of
heroin was recovered from his newly purchased flat at Seelampur, Delhi.
Further, on disclosure of Mohd. Akhtar @ Raja, accused Shabir Ahmed Bhat
@ Sehjad was arrested on 29.11.2015 in his Eco Sports car in New Friends
Colony and 1.8 kgs of heroin was recovered on search of his car. Also, on
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By:DINESH CHANDRA
Signing Date:01.10.2022
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01.12.2015, Ezeh Chinedu Joseph and his associate Ugo Geoffery Franklin
were arrested in Zeta car in New Friends Colony and 1 kg of heroin was
recovered from their possession. One Imamudin was also arrested on
03.12.2015 from Jungpura Extension and 400 gms of heroin was recovered
from him.
3. Thus, as per investigation complete chain of 9 drug suppliers was
established with the arrest of aforesaid persons. Charge-sheet was
accordingly filed and charge is stated to have been framed against the
accused.
4. Learned counsel for the petitioner submits that the petitioner has been
falsely implicated in the present case and is in custody since 25.11.2015. It is
further submitted that no contraband was recovered from the possession of
the accused on 25.11.2015 when he was arrested and the alleged recovery
has been effected only during the policy custody remand. It is also urged that
the recovery was effected from house No.7/14, Second Floor, Gali No.5/10,
near New Moon Public School which was opened with a key alleged to have
been recovered from the personal search of the petitioner on 25.11.2015.
However, the entries of the aforesaid key have not been reflected in the
Malkhana Register as per Entry No.2665 in the Register. It is also urged that
the police did not comply with the provisions of Sections 41, 42 (1) & (2) of
NDPS Act, 1985 without any valid authorization. Reliance is also placed
upon 'State of Punjab Vs. Balbir Singh' 1994 (3) SCC 299, orders passed
by Delhi High Court in 'Deepak Pandey Vs. State', Bail Application
No.903/2019. It is also submitted that certain voice calls conversations are
relied by the investigating agency but there is no whisper about dealing of
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By:DINESH CHANDRA
Signing Date:01.10.2022
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drugs. Reference made to the judgment passed in 'Chenna Boyana Vs. State
of Maharashtra' 2007 (1) AD SC 119, 'Sujit Tiwari Vs. State of Gujarata',
Crl. Appeal No.1897/2019 and 'Desh Raj Vs. Central Bureau of
Investigation', Crl. M. No.36767/2012. It is also urged that the trial is likely
to take some time and accused is in custody for a period of about 7 years.
Reliance is also placed upon 'Supreme Court Legal Aid Committee
representing under Trial Vs. Union of India' 1995 SCC (Crl.) 39.
5. On the other hand, the application has been vehemently opposed by
the learned APP for the State. It is pointed out that during the course of
interception, incriminating voice calls of accused were intercepted in the
office of Special Cell regarding drug trafficking activities and FSL report has
been obtained. It is also urged that the mandatory provisions of the NDPS
were duly complied with prior to affecting the recovery. It is also pointed out
that pursuant to the disclosure statement after initial arrest of Durgesh @
Mangal, the other members of the drug syndicate were arrested and heavy
recoveries have been made. It is also pointed out that the present petitioner
already stands convicted in FIR No.38/2006 under Sections 21/29 of the
NDPS Act registered at Police Station Narcotics Branch and FIR No.
55/2008 under Sections 21/29 of the NDPS Act registered at Police Station
Special Cell, Delhi. It is also submitted that during investigation, financial
investigation of the property suspectedly acquired by accused persons
including Mohd. Akhtar @ Raja by the money derived from sale proceeds of
narcotic drug was identified i.e. house No.7/14, Second Floor, Gali No.5/10,
near New Moon Public School and scooty No. DL5S BS 9252 and have been
frozen in accordance with law. It is further submitted out that CDR
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By:DINESH CHANDRA
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connectivity of petitioner from his Mobile No.7837353762 and 9988631853
with accused Ashwani @ Abu Bakar on mobile No. 9592872613 and
8196941672, with accused Durgesh @ Mandal on his mobile No.
8591524237 and accused Shabir Ahmed Bhat @ Sehjad on his mobile No.
9891861453 stands disclosed which corroborates that the drug syndicate was
operating in close connectivity with each. It is also urged that there is a
genuine apprehension that the petitioner is likely to flee in case he is released
on bail. It is also pointed out that ownership documents of the house of the
petitioner and statement of previous owner who had sold to Mohd. Akhtar @
Raja also stand recorded.
6. I have given considered thought to the contentions raised.
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.
Based upon the precedents, the test which this Court is required to
apply while granting bail is whether there are reasonable grounds to believe
that accused is not guilty of such an offence and whether he is likely to
commit any offence while on bail.
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By:DINESH CHANDRA
Signing Date:01.10.2022
16:09:07
7. It may be noticed that a big drug syndicate was uncovered during the
course of investigation in the present FIR No.63/2015, whereby identity of
nine accused stands established and heavy quantities of
heroin/opium/alprazolam have been recovered. The recoveries effected from
different accused also reflect deep connectivity in running the drug syndicate
and trafficking of narcotics substances.
So far as the applicant Mohd. Akhtar @ Raja is concerned, his name
was revealed in the statement of co-accused Durgesh @ Mangal and further
on his arrest from Darya Ganj on 25.11.2015 and after police custody
remand on 27.11.2015, 525 gms of heroin stands recovered from his newly
purchased flat bearing No. 7/14, Second Floor, Gali No.5/10, near New
Moon Public School, Chauhan Bangar, Seelampur, Delhi. The challenge to
the alleged recovery on the ground that the entry of key of the premises
recovered from the personal search was not reflected in the Malkhana
register can be duly looked into during the course of trial on the examination
of the concerned witnesses. At this stage, apart from the aforesaid recovery,
co-accused Shabir Ahmed Bhat @ Sehjad was arrested on his disclosure,
from whom a further recovery of 1.8 kg of heroin was made from the search
of his Eco Sports car. It is also pertinent to notice that on the basis of the
CDR details, there appears to be clear connectivity between the petitioner
along with other co-accused Ashwani @ Abu Bakr, Durgesh @ Mangal as
well as Shabir Ahmed Bhat @ Sehjad. Also, earlier involvements of the
applicant Mohd. Akhtar @ Raja have been pointed out in FIR 38/2006 under
Sections 21/29 of the NDPS Act, 1985 Police Station Narcotic Branch and
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By:DINESH CHANDRA
Signing Date:01.10.2022
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FIR No.55/2008 under Sections 21/29 of the NDPS Act, 1985 Police Station
Special Cell in which the petitioner stands convicted.
8. In the facts and circumstances, merely because the petitioner has been
in custody since 25.11.2015 cannot be the sole ground for releasing him on
bail. It also needs to be ascertained in case the delay in trial can be attributed
to the prosecution or if the accused themselves have been responsible for
delay in trial apart from situation arising out of Covid-19 pandemic. The
restrictions placed under sub-Section (2) of Section 37 of the NDPS Act are
to be kept in mind even while considering the prayer for bail on grounds of
delay in conclusion of trial. The petitioner has failed to demonstrate if there
are grounds to believe that he is not guilty of the offence alleged against him,
for being admitted to bail in the light of corroborating evidence on record
indicating his connectivity with drug syndicate. It has been observed by
Hon'ble Supreme Court of India in 'NCB vs. Mohit Aggarwal', 2022 SCC
OnLine SC 891 that the length of the period of custody or the fact that
chargesheet has been filed and the trial has commenced are by themselves
not considerations that can be treated as persuasive grounds for granting
relief to the applicant under Section 37 of the NDPS Act.
9. In the facts and circumstances, considering the evidence on record, I
am of the considered opinion that no grounds for grant of bail are made out
in the light of twin conditions laid down in Section 37 of the NDPS Act.
Application is accordingly dismissed.
However, considering the facts and circumstances, learned Trial Court
is directed to make an endeavour to conclude the proceedings preferably
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By:DINESH CHANDRA
Signing Date:01.10.2022
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within nine (09) months from the date of receipt of this order, subject to the
condition that no adjournments are sought on behalf of the accused.
A copy of this order be forwarded to the learned Trial Court for
information and compliance.
(ANOOP KUMAR MENDIRATTA)
JUDGE
SEPTEMBER 28, 2022/A
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By:DINESH CHANDRA
Signing Date:01.10.2022
16:09:07
