BAIL APPLN./1766/2019 of LAL BABU @ RAJESH @ RAJU Vs GOVT. OF NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI+BAIL APPLN. 1766/2019

LAL BABU @ RAJESH @ RAJU

..... Petitioner

Through:Mr Shiva Bhardwaj and Ms AditiChopra, Advocates.Chopra, Advocates.

versus

GOVT. OF NCT OF DELHI..... Respondent

Through:Ms Meenakshi Chauhan, APP forState with ASI Kanwal Singh, CrimeBranch.State with ASI Kanwal Singh, CrimeBranch.

CORAM:HON'BLE MR. JUSTICE VIBHU BAKHRUO R R%15.10.2019

1.The petitioner has filed the present petition, inter alia, praying that hebe granted bail under Section 439 of the Code of Criminal Procedure, 1973in FIR No.103/2017 under Section 20 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (NDPS Act). It is the prosecution’s casethat secret information was received by SWR, Crime Branch, Dwarka thatthe petitioner was involved in the supply of ganja in the Delhi/NCR region.The said information indicated that the petitioner would visit an area nearRohini Jail Morh from the Outer Ring Road in order to supply hugequantity of ganja. Accordingly, raid was conducted.2.It is alleged that the petitioner was apprehended and twenty-sevenkilograms of ganja was recovered from his possession. It is stated that priorto recovery of the said substance, the petitioner was apprised of his rights

under Section 50 of the NDPS Act. However, he declined the opportunity tobe searched by Gazetted Officer or Magistrate.

3.It is the petitioner’s case that provisions of Section 50 were notcomplied with. The petitioner disputes that any such offer to be searched inthe presence of Gazetted Officer/Magistrate was made and he had declinedthe same. The learned counsel appearing for the petitioner further submitsthat even if it is assumed that an opportunity was granted to the petitioner tobe searched before Magistrate or Gazetted Officer and he had declinedthe same, the same would not comply with the requirements of Section 50 ofthe NDPS Act. He relies on the decision of the Supreme Court in Arif Khan@ Agha Khan v. State of Uttarakhand: 2018 AIR (SC) 2123.

4.In addition, he also submits that the petitioner was apprehended at adistance of merely twenty metres from police station and therefore, hecould have been produced before Magistrate.

5.Ms Chauhan, learned APP opposes the petitioner’s application forgrant of bail. She submits that commercial quantity of the illicit substancewas recovered from the petitioner and he ought not to be granted any bail.She also referred to Section 37 of the NDPS Act and submitted that unlessthe Court is satisfied that there are reasonable grounds to believe that thepetitioner is not guilty of the offence and/or is not likely to commit anyoffence while on bail, bail cannot be granted.

6.The petitioner has been in custody since 04.07.2017. The petitionerhas raised contentious issues with regard to the applicability of the decisionof Arif Khan @ Agha Khan (supra). The grounds raised by the petitionerare substantial.The status report does not indicate any material, whichwould lead this Court would believe that if the petitioner is released on bail,

he would commit an offence which is alleged against him.

7.In view of the above, the preset petition is allowed and the petitioneris admitted to bail on his furnishing bail bond in the sum of ₹1 lakh and surety of the like amount to the satisfaction of the concerned Trial Court.This is also subject to further condition that the petitioner shall not leavethe National Capital Territory of Delhi.He shall also report to theconcerned Investigation Officer once every fortnight. It is further clarifiedthat if the petitioner gets involved in any other FIR during the period he isreleased on bail, the present bail shall stand cancelled.

8.The petition is allowed in the aforesaid terms.

9.Order dasti under signatures of the Court Master.

OCTOBER 15, 2019MK

VIBHU BAKHRU, J