BAIL APPLN./1689/2023 of IQBAL Vs STATE OF GNCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment Reserved On: 21[st]September, 2023Judgment Delivered On:11[th]October, 2023Judgment Delivered On:11[th]October, 2023

+BAIL APPLN. 1689/2023

versus

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

BAIL APPLN. 1689/2023 & BAIL APPLN. 1309/2023

1.By way of the present applications, the applicants seek regular bail inSignature Not VerifiedDigitally Signed By:DINESHKUMARSigning Date:11.10.2023BAIL APPLN. 1309/2023 with connected matter11:45:05Page 1 of 10

FIR No.251/2022 dated 20[th]April, 2022 under Sections 20/29/61/85 of theNarcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)registered at Police Station Sarita Vihar. BAIL APPLN. 1309/2023 has beenfiled on behalf of Sheela and BAIL APPLN. 1689/2023 has been filed onbehalf of Iqbal.

2.The case set up by the prosecution is as under :

i.A secret information was received at Police Station Sarita Vihar on20[th]April, 2022 regarding illegal supply of Ganja.20[th]April, 2022 regarding illegal supply of Ganja.

ii.A raiding party was constituted and raid was conducted. During theraid, three people namely, Vinod, Iqbal and Sheela were apprehendedtravelling in three-wheeler. Vinod and Sheela were sitting on theback seat while Iqbal was driving the auto. Both the accused personssitting at the back had one bag each between their legs.raid, three people namely, Vinod, Iqbal and Sheela were apprehendedtravelling in three-wheeler. Vinod and Sheela were sitting on theback seat while Iqbal was driving the auto. Both the accused personssitting at the back had one bag each between their legs.

iii.Both the carry bags were seized, sealed and taken into possession andall the accused persons were arrested.all the accused persons were arrested.

iv.Samples were drawn and sent for testing. As per the FSL report, thesamples were found to be Ganja.samples were found to be Ganja.

v.After the completion of the investigation, chargesheet was filed. TheFSL report was filed through supplementary chargesheet.FSL report was filed through supplementary chargesheet.

vi.Vide order dated 29[th]August, 2023, charges have been framed againstall the three accused persons under Section 20(C) read with Section29 of the NDPS Act which deals with commercial quantity.all the three accused persons under Section 20(C) read with Section29 of the NDPS Act which deals with commercial quantity.

3.Vide order dated 2[nd]May, 2023, interim bail was granted to Sheelawhich has been extended from time to time and continues till date.which has been extended from time to time and continues till date.

4.On behalf of Sheela, it has been submitted that she was apprehendedwith bag containing 14.13 kg of Ganja, which is an intermediate quantity.with bag containing 14.13 kg of Ganja, which is an intermediate quantity.

Signature Not Verified

BAIL APPLN. 1309/2023 with connected matter11:45:05

The co-accused Vinod had hand bag which contained 24.20 kg of Ganjawhich is commercial quantity. It is submitted that the quantity recoveredfrom the co-accused cannot be added to the quantity recovered from Sheelaand therefore rigours of Section 37 of the NDPS Act will not apply in thepresent case. Reliance in this regard is placed on order of the CoordinateBench in Anita v. State (NCT of Delhi) in BAIL APPLN. 1538/2022decided on 20[th]July, 2022, Anita @Kallo v. State (NCT of Delhi) in BAILAPPLN. 957/2023 decided on 18[th]July, 2023 and Mohd. Ali Nawaz v. Statein BAIL APPLN. 1305/2023 decided on 17[th]August, 2023.

5.It is further submitted that the application for taking samples undersection 52A of the NDPS Act was filed in delayed manner. Whereas theapplicants were arrested on 20[th]April, 2022, the application under section52A was filed on 28[th]April, 2022 after delay of 8 days. Reliance in thisregard is placed on the judgment of the Coordinate Bench in SarvothamanGuhan @Sarvo v. Narcotics Control Bureau in BAIL APPLN. 2879/2022decided on 13[th]September, 2023 and Kashif v. Narcotics Control Bureauin BAIL APPLN. 253/2023 decided on 18[th]May, 2023.

6.Additionally, the applicant in BAIL APPLN. 1689/2023, Iqbal seeksbail on the ground that nothing was recovered from him and he was merelyan auto driver. He further submits that search in terms of Section 50 of theNDPS Act has not been conducted on him and therefore, he should beenlarged on bail.

7.It is submitted by the counsels that the chargesheet has already beenfiled and there is no possibility of the applicants tampering with theevidence and therefore, the applicants should be enlarged on bail.

8.Per contra, learned APP submits that all three accused persons entered

into criminal conspiracy for supply of Ganja. As per the CDRs, all threeaccused were in touch with each other. Further, recoveries of contrabandhave been affected jointly from all the accused persons. Reliance in thisregard has been placed on the judgment of the Supreme Court in Union OfIndia v. Md. Nawaz Khan in Criminal Appeal No.1043/2021 decided on22[nd]September, 2021.

9.Learned APP submits that whether there was any delay in filing anapplication under section 52A of the NDPS Act would be matter of trialand bail cannot be granted to the applicant only on account of delay.Reliance in this regard has been placed on the order passed by CoordinateBench in Sunny v. State in BAIL APPLN. 3054/2022 decided on 15[th]March, 2023.

10.With regard to compliance of Section 50 of the NDPS Act, it issubmitted by the learned APP that since no drugs were recovered from theperson of Iqbal, Section 50 is not applicable. Reliance in this regard isplaced on the judgment of the Supreme Court in Kallu Khan v. State ofRajasthan, AIR 2022 SC 50.

11.I have heard the counsels for the parties and perused the material onrecord.

12.The first issue to be considered in the present case is whether thequantity recovered from Sheela in the present case is commercial quantity orintermediate quantity. As per the allegations in the FIR, both the co-accusedVinod and Sheela were sitting on the backseat of the auto-rickshaw whenthey were nabbed. Both of them had separate bags between their legs whichthey were holding with one hand.

13.In Madan Lal v. State of Himachal Pradesh, (2003) 7 SCC 465, the

Signature Not Verified

Supreme Court was dealing with case where all the accused persons weretravelling in vehicle when they were nabbed and recoveries were madefrom them. The relevant extracts from the said judgment are set out below:-

“19. Whether there was conscious possession has to bedetermined with reference to the factual backdrop. The factswhich can be culled out from the evidence on record are that allthe accused persons were travelling in vehicle and as noted bythe trial court they were known to each other and it has not beenexplained or shown as to how they travelled together from thesame destination in vehicle which was not public vehicle.

20. Section 20(b) makes possession of contraband articles anoffence. Section 20 appears in Chapter IV of the Act which relatesto offences for possession of such articles. It is submitted that inorder to make the possession illicit, there must be consciouspossession.”

14.The aforesaid judgement of Madan Lal (Supra) was relied upon bythe Supreme Court in Md. Nawaz (supra), car in which the co-accusedwere travelling was intercepted and the search of the car revealed twopolythene packets hidden in the car. The first packet contained 1.740 kg andthe second packet contained 1.750 kg samples. The samples were sent fortesting and tested positive for heroin. One of the co-accused sought bail onthe ground that he was only companion in the vehicle and was not inconscious possession of the contraband and provisions of Section 50 of theNDPS Act were not complied with. The Supreme Court rejected the bailapplication while noting that the accused was not an unknown passenger inthe vehicle but was someone in close contact with the other co-accused. Therelevant observations of the same are extracted below:-

“30. The following circumstances are crucial to assessing whetherthe High Court has correctly evaluated the application for bail,

having regard to the provisions of Section 37:

(i) The respondent was travelling in the vehicle all the way fromDimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused;

(ii) The complaint notes that the CDR analysis of the mobilenumber used by the respondent indicates that the respondentwas in regular touch with the other accused persons who wereknown to him;

(iii) The quantity of contraband found in the vehicle is of acommercial quantity; and

(iv) The contraband was concealed in the vehicle in which therespondent was travelling with the co-accused.”

15.In Anita (supra), relied upon by the applicants, it was observed thatrecovery made from one co-accused cannot be added to the quantityrecovered from the other co-accused. The said judgment was followed byme in Anita @Kallo (supra) and bail was granted to the accused in view ofthe fact that the quantity of heroin recovered from the applicant therein wasintermediate quantity. However, in these cases, the co-accused were nottravelling together in vehicle like in the present case. Therefore relianceplaced on these cases is misplaced.

16.Further, reliance placed on behalf of the applicant on Mohd. AliNawaz (Supra) is misplaced as in the said case, the Trial Court had framedcharges for commission of offence involving an intermediate quantity. In thepresent case, charges have been framed for offences involving commercialquantity.

17.In the present case, all the accused persons were travelling together in

the same vehicle and the total quantity of Ganja was 14.13 kg and 24.20 kgin two separate bags. Merely because the bag with 24.20 kg Ganja wasbetween the legs of the co-accused Vinod and the bag of 14.13 kg Ganjawas between the legs of the Sheela, it cannot be said that the recovery madefrom Sheela was only 14.13 kg.

18.In the Status Report filed on behalf of the State, it has been stated thatthere were 287 telephonic calls made between Sheela and Iqbal from theperiod 22[nd]September, 2021 to 19[th]April, 2022; and 19 calls between Iqbaland co-accused Vinod between 22[nd]February, 2022 and 4[th]March, 2022,which shows that all the accused persons were acting together and were inconstructive and conscious possession of the total quantity of Ganjaamounting to 38.33 kg.

19.The next issue to be considered is whether the delay of 8 days in filingan application under section 52A of the NDPS Act can by itself be groundfor grant of bail.

20.In Kashif (supra), Coordinate Bench of this Court granted bail onaccount of delay in compliance with provisions of section 52A of the NDPSAct. However, it is to be noted that in Kashif (supra), the application undersection 52A of the NDPS Act was filed after an inordinate delay of 51 days.

21.In Sarvothaman Guhan (supra), the delay in filing an applicationunder Section 52A of the NDPS Act was only one of the reasons for thegrant of bail. There were various other reasons given for the grant of bailincluding (i) non-recovery of commercial quantities of contraband (ii) non-compliance with provisions of sections 41 and 42 of the NDPS Act and (iii)grounds of parity.

22.A Coordinate Bench of this court in Arvind Yadav v. Govt. of NCT of

Signature Not Verified

Delhi in BAIL APPLN. 1416/2021 decided 6[th]July, 2021 relying upon thejudgment of the Supreme Court in Union of India v. Mohanlal and Anr.(2016) 3 SCC 379, had rejected bail on the ground of non-compliance withthe provisions of section 52A of the NDPS Act. Relevant paragraph ofArvind (Supra) is set out below-

“13. By this petition, petitioner seeks bail on the ground ofnoncompliance of Section 52A of the NDPS Act, however, in viewof the fact that the trial does not stand vitiated by drawing thesamples at the spot in the absence of Magistrate for being sent toFSL analysis for filing appropriate charge-sheet before theSpecial Court for ascertaining the nature of contraband andwhether the sanctity of drawing the samples was vitiated for thenon-presence of the Magistrate would be an issue to be seenduring the course of trial, hence this Court finds no ground togrant bail to the petitioner on this ground.”

23.The judgment of Arvind Yadav (Supra) was relied upon by theCoordinate Benches in Sunny v. State(Govt. of NCT of Delhi) in BAILAPPLN. 3054/2022 decided on 15[th]March, 2023 and in Surender Kumar v.Central Bureau of Narcotics in BAIL APPLN. 1212/2023 decided on 22[nd]August, 2023 while rejecting bail on the ground of non-compliance withprovisions of section 52A of the NDPS Act.

24.Now I shall deal with the submission made on behalf of Iqbal withregard to non-compliance with section 50 of the NDPS Act. referencemay be made to provisions of Section 50(1) of the NDPS Act:-

“50. (1) When any officer duly authorised under section 42 isabout to search any personunder the provisions of section 41,section 42 or section 43, he shall, if such person so requires, takesuch person without unnecessary delay to nearest Gazetted Officerof any of the departments mentioned in section 42 or to the nearestMagistrate.”

Digitally Signed By:DINESHKUMARSigning Date:11.10.2023

25.As the language of the section itself suggests, the section would applywhen person himself/herself is searched. In this regard, learned APP hascorrectly relied upon the judgment of the Supreme Court in Kallu Khan(Supra), wherein it has been held that compliance of Section 50 of the NDPSAct would not apply in cases where seizure of contraband has been madefrom motor vehicle. Relevant observations are set out below:-

“15. Simultaneously, the arguments advanced by the appellantregarding non compliance of Section 50 of NDPS Act is bereft ofany merit because no recovery of contraband from the person ofthe accused has been made to which compliance of the provisionof Section 50 NDPS Act has to follow mandatorily. In thepresent case, in the search of motor cycle at public place, theseizure of contraband was made, as revealed. Therefore,compliance of Section 50 does not attract in the present case. Itis settled in the case of Vijay Singh (supra) that in the case ofpersonal search only, the provisions of Section 50 of the Act isrequired to be complied with but not in the case of vehicle as inthe present case, following the judgment of Surinder Kumar(supra) and Baljinder Singh (supra). Considering the facts of thisCourt, the argument of noncompliance of Section 50 of NDPS Actadvanced by the counsel is hereby repelled.”

26.In the present case, there was no seizure from the person of Iqbal andtherefore, section 50 of the NDPS Act is not attracted. The seizure was madefrom other co-accused who were travelling together with Iqbal in thevehicle.

27.Considering the aforesaid facts and circumstances and that theaccused persons were travelling together in vehicle and that largecommercial quantities of Ganja have been recovered from their possession,in my considered opinion, the twin conditions as mentioned in Section 37 of

Signature Not Verified

the NDPS act are not satisfied and hence, bail cannot be granted to theapplicants at this stage. Accordingly, the bail applications are dismissed.28.Sheela, the applicant in BAIL APPLN. 1309/2023, who is on interimbail, shall surrender within one week.

29.Needless to say, the observations made on the merits of the matter arepurely for the purpose of adjudicating the present applications and shall notbe construed as expressions on the merits of the matter.

OCTOBER 11, 2023at

AMIT BANSAL, J.

Signature Not Verified