BAIL APPLN./3791/2024 of NEERAJ KUMAR SHARMA Vs THE STATE ( N.C.T OF DELHI)

IN THE HIGH COURT OF DELHI AT NEW DELHI+ BAIL APPLN. 3791/2024

NEERAJ KUMAR SHARMA

.....Petitioner

Through: Mr. Suraj Prakash Sharma, Adv.

versus

THE STATE (N.C.T OF DELHI)

.....Respondent

Through: Mr. Amit Ahlawat, APP for State with SI Manish Kumar, PS Crime Branch. with SI Manish Kumar, PS Crime Branch.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

26.11.2024

1.This petition has been filed seeking regular bail in FIR No. 117/2023 dated 17[th] May, 2023 under Sections 15/29 Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) registered at PS Crime Branch (Delhi). Chargesheet was filed on 07[th] November, 2023 under Sections 15/25/29 NDPS Act.

2.As per the Nominal Roll, the petitioner has been in custody for period of about 1.5 years, has no previous involvements, and has been released on interim bail in December 2023 and January 2024 when liberty granted was not misused by him.

3.The case of the prosecution was based upon recovery of 55 Kgs of poppy straw contained in two white coloured gunny bags from the boot of

Swift Dzire Car on 17[th] May, 2023. The car was being driven by one Naresh Kumar Gupta with co-passenger Dilip Kumar Mishra. The two were, therefore, arrested. The persons were apprehended and disclosed that they used to supply poppy straw to the petitioner after procuring it from one Shankar in Tonk, Rajasthan.

4.Counsel for the petitioner points out that this Court has already granted bail to Shankar by order dated 07[th] August, 2024 in BAIL APPLN. 1442/2024 titled Shanker Lal Dhakar @ Shankar Dhakad v. The State NCT Of Delhi, on the basis that the prosecution’s case was based only on disclosure statements of co-accused.

5.On an earlier occasion, on 21[st] August, 2024, the bail petition for the petitioner had been withdrawn by the counsel for the petitioner. Subsequently, charges have now been framed against the co-accused Shankar as well as the petitioner. Therefore, this bail petition has been moved again on this change of circumstance.

6.APP for the State, however, points out to the Status Report and contends that the FASTag on the Swift Dzire Car was in the name of the petitioner, and there was CDR connectivity between the petitioner and the two occupants of the car. Aside from this, there were financial transactions of about Rs. 3,14,500/- between the petitioner and the co-accused Shankar.

7.To this, counsel for the petitioner states that petitioner cannot be implicated for use of the car which he has given to co-accused since there has been no recovery from him.

8.He relies upon decision of Coordinate Bench of this Court BAIL APPLN. 186/2024 titled Arvind Kumar Singh v. State NCT of Delhi where bail was granted in similar circumstances by order dated 30[th] April, 2024.

9.Considering that there is no recovery from the petitioner and he has been implicated only on the basis of disclosure statement of the co-accused, and that other pieces of evidence shall require the test of trial, this Court is inclined to grant bail to the petitioner inter alia on parity with co-accused Shankar, as well as reliance on the decision in Tofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, where the Supreme Court has stated confessional statement recorded under Section 67 of the NDPS Act, as well as decisions of the Coordinate Benches of this Court where the CDR connectivity simpliciter has not been considered enough to confirm implication and involvement, the petitioner is entitled to bail. Relevant paragraphs of the said judgment are extracted hereunder for ease of reference:

“158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

158.2. That statement recorded under Section 67 of the NDPS Act cannot be used as confessional statement in the trial of an offence ”under the NDPS Act.

(emphasis added)

10.A Coordinate Bench of this Court in Phundreimayum Yas Khan v. State (NCT of Delhi), 2023 SCC OnLine Del 135, in para 22 also stated as under:

“22. In the present case there is no narcotic substance or psychotropic substance recovered from the applicant or from his premises. There is no recovery. The disclosure statement made by the applicant, according to me cannot be read against the applicant. The fact that the anticipatory bail moved by Amarjit Singh Sandhu has been rejected by this Court or that Amarjit Singh Sandhu is absconding, cannot be ground to deny bail to the present applicant.”

(emphasis added)

11.It has been repeatedly held by various Benches of this Court that mere reliance on CDR analysis and that calls were exchanged between some parties, cannot form basis for conviction.

12.The object of jail is to secure the appearance of persons during trial and is neither punitive not preventive and deprivation of liberty has been considered as punishment without being proved. It would be instructive to extract the observations of Supreme Court in Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352, which are as under:

“20. plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned

preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to person accused of offences such as those enacted under Section 37 of the NDPS Act.

21. The standard to be considered therefore, is one, where the court would look at the material in broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.”

(emphasis added)

13.This aspect has been even more recently reiterated by the Supreme Court in CRL.A 2787/2024 titled Javed Gulam Nabi Shaikh v State of Maharashtra & Anr. in decision dated 3[rd] July 2024 where the Supreme

Court has usefully traversed the principles of law relating to bail, extracted as under:

“18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has past and every sinner future. When crime is committed, variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in milieu of affluence contrasted with indigence or other privations.

20. We may hasten to add that the petitioner is -still an accused; not convict. The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.”

(emphasis added)

14.In view of the above prima facie assessment, this Court is of the considered opinion that there are reasonable grounds to believe that the petitioner’s guilt may not be proved and further there is no material on record to show that he is likely to commit any offence while on bail.

15.In light of the above, and that the trial in the matter is likely to take some time, and it would not be prudent to keep the petitioner behind bars for an indefinite period, this Court finds it to be fit case for grant of bail to the

petitioner. Consequently, the petitioner is directed to be released on bail on furnishing personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount subject to the satisfaction of the Trial Court, further subject to the following conditions:

i.Petitioner will not leave the country without prior permission of the Court. the Court.

ii.Petitioner shall provide his permanent address to the Trial Court. The petitioner shall intimate the Court, by way of an affidavit, and to the I.O. regarding any change in residential address. Court. The petitioner shall intimate the Court, by way of an affidavit, and to the I.O. regarding any change in residential address.

iii.Petitioner shall appear before the Court as and when the matter is taken up for hearing. is taken up for hearing.

iv.Petitioner shall provide all mobile numbers to the I.O. concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the I.O. concerned. concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the I.O. concerned.

v.Petitioner will mark presence physically before the concerned I.O. every Friday at 4 p.m., and will be not kept waiting for more than an hour. I.O. every Friday at 4 p.m., and will be not kept waiting for more than an hour.

vi.Petitioner shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, or tamper with the evidence of the case. not communicate with or come in contact with any of the prosecution witnesses, or tamper with the evidence of the case.

16.Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.

17.Copy of the order be sent to the concerned Jail Superintendent for information and necessary compliance.

18.Accordingly, the petition is disposed of. Pending applications (if any) are disposed of as infructuous.

19.Order be uploaded on the website of this Court.

NOVEMBER 26, 2024/MK/sc

ANISH DAYAL, J