BAIL APPLN./4776/2024 of NIRPAL Vs THE STATE GOVT. OF NCT OF DELHI

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

O R R15.01.2025

By way of the present petition filed under section 483 of theBharatiya Nagarik Suraksha Sanhita 2023 (‘BNSS’), the petitionerseeks regular bail in case FIR No. 0174/2022 dated 17.08.2022registeredundersections15/25oftheNarcoticDrugsandPsychotropic Substances Act, 1985 (‘NDPS Act’) at P.S.: CrimeBranch, Delhi.

Notice on this petition was issued on 09.01.2025; pursuant to whichStatus Report dated 10.01.2025 has been filed on behalf of the State.

3.Nominal Roll dated 14.01.2025 has also been received from theconcerned Jail Superintendent.

4.Though there was no order for his production, the court is informedthat on some mistaken impression, the petitioner has been producedfrom judicial custody from District Jail Chittorgarh, Rajasthan.that on some mistaken impression, the petitioner has been producedfrom judicial custody from District Jail Chittorgarh, Rajasthan.

The court has heard Ms. Sakshi Sachdeva, learned counsel appearingon behalf of the petitioner; as well as Mr. Utkarsh, learned APPappearing on behalf of the State at length.

Ms. Sachdeva argues, that the petitioner’s name has been included inthe subject FIR based solely on the disclosure statement of oneSanjay, from whom the prosecution is alleged to have recovered 197kgs. of poppy straw found in godown. It is argued, that admittedlyno recovery has been made from the petitioner.

Learned counsel argues, that the prosecution is citing telephonicconnectivity between the petitioner and the above-named Sanjay,without any cellphone having been recovered from the petitioner; andthough the prosecution claims that the petitioner was using 03cellphone numbers, only 01 of the cellphone numbers has beeninvestigated and the other 02 cellphone numbers have not even beeninquired into.

Ms. Sachdeva submits, that even in relation to the 01 cellphonenumber which has been investigated, the prosecution cites thatnumber as an incriminating circumstance against the petitioner byalleging that the said cellphone number is linked with the petitioner’sbank account; without however citing any monetary transaction inthat bank account that could be linked to trade in contraband.It is further pointed-out, that no transcript of any conversation of thepetitioner with Sanjay or with any of the other co-accused persons hasbeen produced; nor has the cellphone itself been recovered.It is submitted that the prosecution has cited total of 26 witnesses inthe chargesheet and the supplementary chargesheet, of which only 07

prosecution witnesses have so far been examined; and that trial in thematter will take along time to conclude.matter will take along time to conclude.

11.Learned counsel argues, that in any case, since almost all prosecutionwitnesses are police officials and other official persons, there is norisk that the petitioner would be able to suborn or influence any ofthem.witnesses are police officials and other official persons, there is norisk that the petitioner would be able to suborn or influence any ofthem.

12.Ms. Sachdeva points-out, that though the allegation against thepetitioner is that Sanjay and other co-accused persons used to sellcontraband, which was supplied to them by the petitioner, there is noproper investigation as to where the petitioner himself acquired thecontraband. It is argued, that though the prosecution alleges that thepetitioner used to source the contraband from one Jugraj, the saidJugraj has been placed in column No. 12 of the supplementarychargesheet and has not been sent-up for trial.petitioner is that Sanjay and other co-accused persons used to sellcontraband, which was supplied to them by the petitioner, there is noproper investigation as to where the petitioner himself acquired thecontraband. It is argued, that though the prosecution alleges that thepetitioner used to source the contraband from one Jugraj, the saidJugraj has been placed in column No. 12 of the supplementarychargesheet and has not been sent-up for trial.

13.In this backdrop Ms. Sachdeva argues, that the petitioner has been injudicial custody from the time of his arrest i.e. 16.09.2023 for about16 months as an undertrial; and though he has been implicated in 02other cases under the NDPS Act, one in Rajasthan and the other inPunjab, the petitioner has already been admitted to regular bail in oneof those matters.judicial custody from the time of his arrest i.e. 16.09.2023 for about16 months as an undertrial; and though he has been implicated in 02other cases under the NDPS Act, one in Rajasthan and the other inPunjab, the petitioner has already been admitted to regular bail in oneof those matters.

14.In this regard, learned counsel has handed-up copy of order dated19.12.2024 passed by Single Bench of the Rajasthan High Court inS.B. Criminal Miscellaneous Bail Application No. 6106/2024,whereby the petitioner has been granted regular bail in case FIR No.157/2021 registered under sections 8/15/29 of the NDPS Act at P.S.:Chittorgarh, Rajasthan.19.12.2024 passed by Single Bench of the Rajasthan High Court inS.B. Criminal Miscellaneous Bail Application No. 6106/2024,whereby the petitioner has been granted regular bail in case FIR No.157/2021 registered under sections 8/15/29 of the NDPS Act at P.S.:Chittorgarh, Rajasthan.

15.Upon being queried as to the recent view taken by the Supreme Courtin Narcotics Control Bureau vs. Kashif,[1]in which the Supreme Courthas said that in NDPS matters negation of bail is the rule and grant ofbail is an exception, Ms. Sachdeva submits, that at least somefoundational evidence or material which would lead to convictionmust be cited by the prosecution to support the negation of bail; and ifno such foundational evidence is forthcoming, an accused would beentitled to bail.in Narcotics Control Bureau vs. Kashif,[1]in which the Supreme Courthas said that in NDPS matters negation of bail is the rule and grant ofbail is an exception, Ms. Sachdeva submits, that at least somefoundational evidence or material which would lead to convictionmust be cited by the prosecution to support the negation of bail; and ifno such foundational evidence is forthcoming, an accused would beentitled to bail.16.Opposing the grant of bail, Mr. Utkarsh, learned APP appearing onbehalf of the State submits, that the petitioner was in telephoniccontact with co-accused Sanjay as well as with other co-accusedpersons, who (latter) have been conducting nefarious activities on thepetitioner’s instructions and instance.behalf of the State submits, that the petitioner was in telephoniccontact with co-accused Sanjay as well as with other co-accusedpersons, who (latter) have been conducting nefarious activities on thepetitioner’s instructions and instance.

17.Learned APP submits, that it is for this reason that the learned trialcourt has framed charge against the petitioner inter-alia under section29 NDPS Act, namely for abetment and criminal conspiracy tocommit the offence under the NDPS Act, which charge has not beenchallenged by the petitioner.court has framed charge against the petitioner inter-alia under section29 NDPS Act, namely for abetment and criminal conspiracy tocommit the offence under the NDPS Act, which charge has not beenchallenged by the petitioner.

18.In these circumstances, it is argued on behalf of the State, that thepetitioner must be held liable for the acts of the other co-accusedpersons, unless he is able to prove otherwise in the course of trial.petitioner must be held liable for the acts of the other co-accusedpersons, unless he is able to prove otherwise in the course of trial.

19.Upon an overall conspectus of the facts and circumstances of the case,what prevails with the court at this stage are the followingconsiderations :what prevails with the court at this stage are the followingconsiderations :

1 2024 SCC OnLine SC 3848

19.1. Admittedly, no recovery of any contraband has been made fromthe petitioner nor has any other incriminating material beencited against the petitioner;the petitioner nor has any other incriminating material beencited against the petitioner;

19.2. The petitioner has been implicated in the matter based on thedisclosure statement of co-accused Sanjay, who has alleged thathe was acting on the instructions of the petitioner. However,other than that disclosure statement, there is no other materialthat has come forth in the course of investigation to support theallegation that the petitioner was involved in the drug trade;disclosure statement of co-accused Sanjay, who has alleged thathe was acting on the instructions of the petitioner. However,other than that disclosure statement, there is no other materialthat has come forth in the course of investigation to support theallegation that the petitioner was involved in the drug trade;

19.3. Though the prosecution has cited certain cellphone number,which is alleged to be linked to the petitioner’s bank account, toallege that the petitioner was in telephonic contact with Sanjayas well as other co-accused persons, there is nothing on recordto show the content or the context of the alleged conversations,since neither any transcript nor any text or WhatsApp messageshave been collected in the course of investigation;which is alleged to be linked to the petitioner’s bank account, toallege that the petitioner was in telephonic contact with Sanjayas well as other co-accused persons, there is nothing on recordto show the content or the context of the alleged conversations,since neither any transcript nor any text or WhatsApp messageshave been collected in the course of investigation;

19.4. Upon perusal of the nominal role, it is seen that the petitionerhas spent about 16 months in judicial custody as an undertrialwhile only 07 of the 26 prosecution witnesses have so far beenexamined. It is therefore evident that trial in the matter will takea long time to conclude; andhas spent about 16 months in judicial custody as an undertrialwhile only 07 of the 26 prosecution witnesses have so far beenexamined. It is therefore evident that trial in the matter will takea long time to conclude; and

19.5. It is also noticed that the nominal roll records the petitioner’sjail conduct as being ‘satisfactory’; and though it is true that thepetitioner has been implicated in 02 other cases under theNDPS Act, in the case registered in Chittorgarh, Rajasthan hehas now been enlarged on regular bail by the Rajasthan Highjail conduct as being ‘satisfactory’; and though it is true that thepetitioner has been implicated in 02 other cases under theNDPS Act, in the case registered in Chittorgarh, Rajasthan hehas now been enlarged on regular bail by the Rajasthan High

court vide order dated 19.12.2024. In any event, mereinvolvement in other offences cannot be the sole ground fordenial of bail in the present case, especially since nounimpeachable material has come on record in the investigationin the present case.

20. As sequitur to the above, the court is persuaded to grant to thepetitioner – Nirpal s/o Mahinder Singh – regular bail pending trialsubject to the following conditions :petitioner – Nirpal s/o Mahinder Singh – regular bail pending trialsubject to the following conditions :

20.1. The petitioner shall furnish personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with 02 sureties in the likeamount from family members, to the satisfaction of the learnedtrial court;50,000/- (Rs. Fifty Thousand Only) with 02 sureties in the likeamount from family members, to the satisfaction of the learnedtrial court;

20.2. The petitioner shall furnish to the Investigating Officer acellphone number on which the petitioner may be contacted atany time and shall ensure that the number is kept active andswitched-on at all times;cellphone number on which the petitioner may be contacted atany time and shall ensure that the number is kept active andswitched-on at all times;

20.3. If the petitioner has passport, he shall surrender the same to thelearned trial court and shall not travel out of the country withoutprior permission of the learned trial court;learned trial court and shall not travel out of the country withoutprior permission of the learned trial court;

20.4. The petitioner shall not contact, nor visit, nor offer anyinducement, threat or promise to any of the prosecutionwitnesses or other persons acquainted with the facts of case. Thepetitioner shall not tamper with evidence nor otherwise indulgein any act or omission that is unlawful or that would prejudicethe proceedings in the pending trial; andinducement, threat or promise to any of the prosecutionwitnesses or other persons acquainted with the facts of case. Thepetitioner shall not tamper with evidence nor otherwise indulgein any act or omission that is unlawful or that would prejudicethe proceedings in the pending trial; and

20.5. In case of any change in his residential address/contact details,the petitioner shall promptly inform the Investigating Officer inwriting.the petitioner shall promptly inform the Investigating Officer inwriting.

21.Since the petitioner is facing trial and is therefore appearing before thelearned trial court from time-to-time, it is not considered necessary toimpose reporting requirement as condition of regular bail.learned trial court from time-to-time, it is not considered necessary toimpose reporting requirement as condition of regular bail.

22.Nothing in this order shall be construed as an expression of opinion onthe merits of the pending matter.the merits of the pending matter.

23.A copy of this order be sent to the concerned Jail Superintendent atCentral Jail, Tihar, Delhi forthwith.Central Jail, Tihar, Delhi forthwith.

24.In the meantime, since the petitioner is also in custody in other cases,he is directed to be taken back to custody of the concerned jailauthorities at the District Jail Chittorgarh, Rajasthan.he is directed to be taken back to custody of the concerned jailauthorities at the District Jail Chittorgarh, Rajasthan.

25.The petition stands disposed-of in the above terms.

26.Pending applications, if any, also stand disposed-of.

JANUARY 15, 2025

ANUP JAIRAM BHAMBHANI, J