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2006 DIGILAW 971 (DEL)

P. S. VIVEK VIHAR, USHA v. THE STATE (NCT OF DELHI)

2006-05-25

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THE learned counsel for the petitioner states that the alleged recovery of 1 kg of heroin is said to have been made from the petitioner on 2. 4. 2002. He submitted that a sample was said to have been taken out of the said alleged recovery and the report of the FSL reveals that the substance recovered contained 2. 8 per cent diacetylmorphine. According to the learned counsel for the petitioner, taking this percentage. the entire content of diacetylmorphine (heroin) in the recovered substance comes to only 28 grams of diacetylmorphine which is much below the commercial quantity specified in respect of heroin keeping in view the decision of this Court in the case of ansar Ahmed vs. State: 123 (2005) DLT 563. Moreover the learned counsel for the petitioner also pointed out that the petitioner has been in judicial custody since 2. 4. 2002 and during this period she has been released on interim bail on 12 occasions and in none of these occasions, she had ever misused the liberty granted to her. He also submitted that the co-accused Madhu, Vikrant and Ravi pandey have already been released on bail. From the co-accused Madhu, 700 grams of contraband is said to have been recovered having a percentage content of 0. 17% diacetylmorphine which translated to 1. 19 grams by weight. In the case of co-accused Vikrant, 100 grams is said to have been recovered having a purity of 0. 14% diacetylmorphine. Insofar as the co-accused Ravi Pandey, nothing was recovered but he has been implicated under Section 29 of the NDPS Act. He also submitted that the petitioner had no antecedent criminal history under the NDPS act. ( 2 ) THE learned counsel for the State opposed the grant of bail. He submits that the petitioner was involved in an NDPS related case in respect of F. I. R. No. 14/2002 registered at Police Station Islamabad, Punjab (India ). The said FIR was registered on 16. 1. 2002. He also submitted that the petitioner had also been convicted in a case under the Excise Act. The third case is the present one. ( 3 ) IN rejoinder, the learned counsel for the petitioner pointed out that in the case registered under FIR No. 14/2002 the petitioner had been discharged. He has produced a copy of the petitioner s discharge order. The third case is the present one. ( 3 ) IN rejoinder, the learned counsel for the petitioner pointed out that in the case registered under FIR No. 14/2002 the petitioner had been discharged. He has produced a copy of the petitioner s discharge order. Insofar as the offence under the Excise Act is concerned, the petitioner had been convicted and only a fine was imposed and the same had already been paid. Accordingly to him, there is no involvement of the petitioner in NDPS case other than the present case. ( 4 ) HE also pointed out that by virtue of an order dated 5. 3. 2004 when an earlier bail application has been moved before this Court, this Court had directed the trial court to expedite the trial and decide the same within six months. The order was passed on 5. 3. 2004 and now more than two years have been elapsed and yet the trial has not been concluded. Mr. Sharma who appears on behalf of the State submitted that nine out of ten witnesses have been examined and only the Investigating Officer remains to be examined and the next date is fixed for his examination on 27. 7. 2006. The learned counsel for the petitioner states that there is no likelihood of an earlier conclusion of the trial. He also submitted that cross-examination of all the witnesses have not been concluded. ( 5 ) IT is a fact that PW5 has been examined in chief. However, he has not been made available for cross examination by the defence. The learned counsel for the petitioner pointed out that on several dates, the said PW5 was proposed to be produced but he has not appeared since 21. 09. 2004 The learned counsel for the State confirms this fact that even as late as in March, 2006 summons were issued for the production of PW5 for cross examination but he could not be served. As a result of which, the trial has not proceeded, though the prosecution had made all efforts to conduct the trial in a speedy fashion. ( 6 ) HOWEVER, the fact remains that after the passing of the order dated 05. 03. As a result of which, the trial has not proceeded, though the prosecution had made all efforts to conduct the trial in a speedy fashion. ( 6 ) HOWEVER, the fact remains that after the passing of the order dated 05. 03. 2004 over two years have elapsed and there is no likelihood of the trial being concluded at an early date despite the direction for expediting the trial and concluding the same preferably within six months having been made on 05. 03. 2004 In these circumstances, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned court. This application stands disposed of. .