BAIL APPLN./2097/2024 of GAURAV TOKAS Vs STATE NCT OF DELHI

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 2097/2024

GAURAV TOKAS .....Applicant Through: Mr. Rao Dhruv Singh, Advocate.

versus

STATE NCT OF DELHI .....Respondent Through: Mr. Ajay Vikram Singh,APP for the State. SI Rohit (ANTF/Crime Branch).

CORAM:HON'BLE MR. JUSTICE AMIT MAHAJAN

O R R12.09.2024

1.The present application is filed seeking regular bail in FIR No.205/2023 dated 22.08.2023, registered at Police Station Crime Branch, for offences under Sections 20/22/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

2.It is alleged that on 22.08.2023, on the basis of secret information, accused – Sahil was apprehended and recovery of 67 grams of MDMA was made from him. further recovery of 133 grams of MDMA, 1200 grams of Charas and 2580 grams of Ganja was made from the car of accused – Sahil.

3.During the course of investigation, it is alleged that the accused Sahil disclosed that he used to procure the contraband ‘ganja’ from the co-accused Lakshay Jain. The co-accused,

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Lakshay Jain thereafter was arrested on 09.10.2023.

4.It is further alleged that the co-accused Lakshay Jain disclosed that he had procured contraband ‘ganja’ from the present applicant.

5.The learned counsel for the applicant submits that no recovery has been affected from the applicant and he has been falsely implicated in the present case solely on the basis of the disclosure statement of the co-accused Lakshay Jain. He submits that the only other aspect depicted to be purportedly incriminating is the presence of certain UPI transactions between the co-accused Lakshay Jain and the applicant. He submits that the financial transactions, by itself, are not enough to link the applicant to the co-accused Lakshay Jain.

6.He submits that three other co-accused namely, Sumit Fagna, Tanay Khatri, and Anand Singh @Andy have already been enlarged on bail by this Court, and prays for admission on bail on the ground of parity.

7.Per contra, the learned Additional Public Prosecutor (APP) for the State opposes the grant of bail to the applicant. He submits that since the recovered quantity of contraband in the present case is commercial in nature, the bar under Section 37 of the NDPS Act is attracted. He submits that the applicant used to sell cannabis to the co-accused Lakshay Jain. He further submits that the disclosure statement of the co-accused can be further corroborated by the existence of bank transaction history between the co-accused Lakshay Jain and the applicant, and certain chats between the two which show that the applicant was in contact with

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the co-accused – Lakshay.

8.It is relevant to note that while the veracity of the disclosure statement of the said co-accused is to be tested at the time of the trial, this Court cannot lose sight of the decision of the Hon’ble Supreme Court in Tofan Singh v. State of Tamil Nadu : (2021) 4 SCC 1, wherein it was held that disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence without corroboration. The relevant paragraphs of the said judgment is set out below:

“155. Thus, to arrive at the conclusion that confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

156. The judgment in Kanhaiyalal then goes on to follow Raj Kumar Karwal in paras 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overrules by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

157. On the other hand, for the reasons given by us in this judgment, the judgments or Noor Aga and Nirmal Singh Pehlwan v. Inspector, Customs are correct in law.

158. We answer the reference by stating:

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.

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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 supplied)

9.A Coordinate Bench of this Court in Phundreimayum Yas Khan Vs. State (GNCT of Delhi) : 2023 SCC OnLine Del 135, held that when there is no material to link the applicant with the recovery of the commercial quantity from the co-accused persons, the rigors of Section 37 would not apply. It was further held that the disclosure statement of co-accused is per se not admissible without there being any corroboration.

10.Apart from the disclosure statement of the co accused – Lakshay, the only material against the applicant is the existence of certain chats, and certain banking transactions between the applicant and the co accused – Lakshay. There is no other evidence to show that the applicant was involved in the commission of the alleged offence. No material has been placed on record yet to establish that the banking transactions were in relation to the concerned contraband.

11.This Court, in the case of Dalip Singh v. State (NCT of Delhi) : 2019 SCC OnLine Del 6494, had observed as under:

“11. On perusal of the record, it is prima facie seen that there are two major missing links in the case of the prosecution. There is no link established by the prosecution between the petitioner with the alleged supplier Manoj. Further the entire case of the prosecution, in so far as petitioner is concerned is circumstantial i.e. based solely on disclosure statement of co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the

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subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts. Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner.

12. I am of the view that requirement of Section 37 of the NDPS Act are satisfied. In so far as the petitioner is concerned, there are reasonable grounds to believe that petitioner is not guilty of the said offence.”

(emphasis supplied)

12.At this stage, there is no other evidence to show that the applicant is involved in any manner with the co accused – Lakshay. Admittedly no recovery has been affected from the applicant and in such circumstances merely because the applicant was allegedly in touch with the co-accused Lakshay, the bar of Section 37 of the NDPS Act is not attracted. The Courts are not expected to accept every allegation made by the prosecution as gospel truth.

13.Mere contact or the presence of certain banking transactions with the co - accused who was found in possession of contraband cannot be treated to be corroborative material in absence of substantive material found against the accused.

14.The learned APP for the State has contended that the applicant cannot be enlarged on bail unless the conditions laid down in Section 37 of the NDPS Act are met.

15.The Hon’ble Apex Court, in the case of Union of India v. Shiv Shanker Kesari :(2007) 7 SCC 798, has observed as under:

“11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record finding of not guilty. It is for the limited

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purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing judgment of acquittal and recording finding of not guilty.

12. Additionally, the court has to record finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such conclusion.”

16.The Hon’ble Apex Court, in the case of Mohd. Muslim v.

State (NCT of Delhi) :2023 SCC OnLine SC 352, has reiterated

the law in regard to Section 37 of the NDPS Act 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.”

17.In view of the above, this Court is of the opinion that the embargo of Section 37 of the NDPS Act does not come in the way of granting bail to the applicant.

18.The applicant is in custody since 01.11.2023. It is not disputed that the applicant has clean antecedents. The chargesheet has already been filed and the investigation in relation to applicant is stated to be complete. It is also seen that three co-accused

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namely, Sumit Fagna, Tanay Khatri, and Anand Singh @Andy have already been enlarged on bail by this Court.

19.It is pointed out that the applicant was released on interim bail, by order dated 26.06.2024, on account of medical reasons, and he has now surrendered.

20.In view of the facts of the case, in the opinion of this Court, the applicant has prima facie established case for grant of bail. 21.The applicant is, therefore, directed to be released on bail on furnishing personal bond for sum of ₹20,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the following conditions:

a.The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever; inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;

b. The applicant shall under no circumstance leave the country without the permission of the learned Trial Court; country without the permission of the learned Trial Court;

c.The applicant shall appear before the learned Trial Court as and when directed; Court as and when directed;

d. The applicant shall provide the address where he would be residing after his release and shall not change the address without informing the concerned IO/ SHO; be residing after his release and shall not change the address without informing the concerned IO/ SHO;

e.The applicant shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times. number to the concerned IO/SHO and shall keep his mobile phone switched on at all times.

22.In the event of there being any FIR/DD entry/complaint

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lodged against the applicant, it would be open to the State to seek redressal by filing an application seeking cancellation of bail. 23.It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case. 24.The bail application is allowed in the aforementioned terms.

AMIT MAHAJAN, J

SEPTEMBER 12, 2024 ‘Aman’

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