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2012 DIGILAW 2277 (DEL)

Sanjay Kumar v. State Thru. NCB

2012-07-13

V.K.SHALI

body2012
JUDGMENT : V.K. Shali, J. 1. This is an application for the grant of regular bail by the accused, Sanjay Kumar in respect of an offence under Section 8(C)/20/29 of the NDPS Act, 1985. 2. Briefly stated, the facts of the case are as under:- 3. On 22.12.2010, at 1300 hrs., a secret information was received by the complainant through some reliable source that four persons from Bihar are travelling in a Maruti Van No.UP-41-8741 and they are carrying a huge quantity of Hashish kept in the Maruti Van and they are going to deliver the consignment of hashish to two persons hailing from Haryana and they would come to take the delivery of the consignment on a motorcycle bearing registration No.HR-31-D-1282 at Railway Station, Julana, Haryana on 23.12.2010 at 8:00 A.M. and if a search is conducted, a huge quantity of hashish can be recovered. The said information was reduced into writing and was put before Shri R.K. Yadav, Superintendent, who directed the complainant to constitute a team and take action according to law. 4. Based on the said information, the complainant, alongwith the other officers of the NCB, reached Rohtak, Haryana at 11:45 P.M.. The team halted at Rohtak for the intervening night of 22-23 December, 2010. On 23.12.2010, at about 7:00 a.m., the team reached the Railway Station, Julana, Haryana and mounted surveillance in the area. The team remained at that place till 11:00 A.M., but no vehicle/person as per the information appeared at the spot. The team returned to Rohtak. On 24.12.2010, at 3:00 P.M., the complainant received further information that the Maruti Van bearing registration No.UP-41-8741, which was to deliver the consignment of hashish at Julana, Rohtak on 23.12.2010, now will deliver the same consignment near Metro Station, Udyog Vihar, New Delhi at 6:00 P.M. on 24.12.2010. The information was reduced into writing and the same was put up before Shri Y.R. Yadav, Superintendent on the spot, who directed the complainant for action. Thereafter, a team of the NCB officials left Rohtak at 3:15 P.M. and reached Udyog Vihar Metro Station, New Delhi at about 5:45 P.M., where another team of DZU was already present. On reaching at the point, the complainant approached some local personal and introduced himself after showing his identity card and the purpose of visit and requested them to join NCB team as independent witnesses for the search/seizure proceedings. On reaching at the point, the complainant approached some local personal and introduced himself after showing his identity card and the purpose of visit and requested them to join NCB team as independent witnesses for the search/seizure proceedings. On his request, two persons, namely, Afsar and Ms. Seema Devi voluntarily agreed to join the NCB team for the search and seizure proceedings as panch witnesses and remained present for further proceedings. The complainant then introduced his team to the panch witnesses and asked for their personal search which they declined. 5. At 5:50 P.M., when the team was stationed in the area, one Maruti Van bearing registration No.UP-41-8741, with four persons, was seen by the NCB team, which was halted on the road side facing towards Punjabi Bagh at Metro Station Udyog Vihar, New Delhi. After some time, one motorcycle bearing registration No.HR-31-D-1282 came with two persons and stopped near the said Maruti Van. Both these persons got down from the motorcycle and started having a conversation with the persons sitting inside the Maruti Van. At this moment, the NCB team intercepted the van and the persons on the motorcycle. On being asked by the NCB officials, all these accused persons disclosed their identity and the NCB officials also showed their identity. 6. A notice under Section 50 of the NDPS Act was issued to all the accused persons, whereby they were to be subjected to about their personal search and the search of their vehicle to be conducted before the learned Magistrate or the Gazetted Officer, to which the accused persons declined and replied, in writing, on their respective notices that they do not want their presence before the learned Magistrate or the Gazetted Officer and further that they have no objection if the search of their own and their vehicle could be conducted by the NCB officials. They signed on the notices as a token of having seen and understood the same and allowed the officials to carry out their personal search as well as the search of their vehicle. On the examination of the driver seat, the co-driver seat and the rear main seat of the Maruti Van, 66 polythene packets of some suspicious substance were found, which, on being opened and on being tested, was detected hashish. After recovery of the entire substance, the same was sealed with seal of NCB. 7. On the examination of the driver seat, the co-driver seat and the rear main seat of the Maruti Van, 66 polythene packets of some suspicious substance were found, which, on being opened and on being tested, was detected hashish. After recovery of the entire substance, the same was sealed with seal of NCB. 7. I have heard the learned counsel for the petitioner as well as the learned counsel for the NCB and have also gone through the records. 8. The main submission of the learned counsel is that the petitioner deserves to be enlarged on bail on the ground of parity because the co-accused, Ramkesh was allegedly the pillion rider of the motorcycle. According to the Prosecution, the accused, who had gone to take the delivery of contraband, has already been enlarged on bail by the Court of Sessions vide order dated 9.8.2011. It has further been stated that so far as the present petitioner is concerned, nothing was recovered from him and, therefore, he also deserves to be enlarged on bail. 9. The learned counsel for the NCB has disputed this fact that the case of the petitioner can be decided on the basis of parity of bail having been granted to the co-accused, Ramkesh. In this regard, the attention of the Court has been drawn to the distinction made by Ms. Anu Grover Baliga, the learned Special Judge : NPDS, while denying the bail to the present petitioner. It has been observed by the learned Special Judge that the present petitioner had been named by all the four co-accused persons, namely, Lallan Kumar, Rakesh Kumar, Dharmender Kumar and Sunil Gupta in their voluntary statement recorded under Section 67 of the NDPS Act to the effect that the accused, Sanjay, was to take the delivery of the contraband. It may be pertinent to mention here that these four co-accused persons, were the occupants of the Maruti Vehicle bearing the Registration No.HR-31D-1282 which was found to be containing 66 packets of hashish hidden in it. The secret information, which was received by the officials of the NCB, was that these 66 packets will be delivered to the present petitioner at a specified spot wherefrom all the accused persons were arrested on the basis of a trap. The secret information, which was received by the officials of the NCB, was that these 66 packets will be delivered to the present petitioner at a specified spot wherefrom all the accused persons were arrested on the basis of a trap. This fact is, prima facie, corroborated by the statement of Sanjay also which was recorded under Section 67 of the NDPS Act, wherein he had admitted that it was he who was to receive the consignment. He has also exculpated, so far as Ramkesh is concerned, by saying that he had only accompanied him to take the delivery of the contraband. Therefore, these two facts clearly show that so far as the petitioner is concerned, he was a part of gang which was dealing with the trading of contraband and, therefore, his case cannot be equated with that of Ramkesh so as to give the petitioner the benefit of bail. 10. One of the conditions, which have been specified under Section 37 of the NDPS Act while enlarging the petitioner on bail is that the Court must be prima facie of the view that the accused may not be involved in the commission of the offence. 11. In the circumstances which have been explained above, I am prima facie not able to form an opinion at this stage that the petitioner was not involved in the commission of the offence pertaining to the trading of contraband for which he is facing the trial. Therefore, I feel that this is not a fit case for granting bail to the present petitioner. The judgments of this Court in Bail Appn. No.340/2011 titled Charan Singh vs. State of Delhi decided on 25.4.2011 and 631/2011 titled Saurabh Yadav vs. State NCT of Delhi decided on 2.6.2011, which have been relied upon by the learned counsel for the petitioner, have no application to the facts of the present case because these two cases are under Section 302 IPC and not the NDPS Act. In addition to this, for the grant of bail, very stringent conditions have been put by the statue in case of NDPS and unless and until the same are not satisfied, the bail cannot be granted. In addition to this, for the grant of bail, very stringent conditions have been put by the statue in case of NDPS and unless and until the same are not satisfied, the bail cannot be granted. I feel that in the instant case neither these conditions, as are enshrined under Section 37 of the NDPS Act, are satisfied nor any parity can be drawn between the cases of Ramkesh and the present petitioner. 12. Accordingly, the bail application is dismissed.