Mohd. Sharif v. State (NCT Of Delhi)
$~6 *
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MOHD. SHARIF .....Applicant Through:
Mr.
Kundan Kumar, Advocate.
versus STATE (NCT OF DELHI) .....Respondent Through:
Mr. Manoj Pant, APP for the State.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
O R D E R
% 17.12.2024 CRL.M.A. 35632/2024 (for exemption) 1.
Exemption allowed, subject to all just exceptions. 2.
The application stands disposed of.
BAIL APPLN. 4358/2024 & CRL.M.A. 35633/2024 3.
The present application is filed seeking regular bail in FIR No. 490/2023 dated 16.06.2023 registered at Police Station Bawana for offences under Sections 21/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act'). 4.
Briefly stated, the FIR in the present case was registered based on a tip-off received by the Narcotics Cell of the Outer North District, informing the police about the activities of one Sahil, who was allegedly involved in the wholesale and retail distribution of heroin. Acting upon this information, a raiding party was formed, which apprehended Sahil near Bawana Chowk, Delhi, on 16.06.2023. During the search, 320 grams of heroin were recovered from his possession. Following his arrest, accused - Sahil disclosed that the heroin was procured from The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
Mohd. Sharif, the applicant in the present case. The applicant absconded and was eventually declared a proclaimed offender. The applicant surrendered before the court on 24.09.2024 and was formally arrested thereafter.
5.
The learned counsel for the applicant submits that the applicant has been falsely implicated in the present case on the basis of the disclosure statement of the co-accused - Sahil. He submits that the provisions of Section 37 of the NDPS Act are not attracted since no recovery has been made from the applicant. 6.
Per contra, the learned Additional Public Prosecutor (APP) opposed the grant of any relief to the applicant. He submits that the disclosure statement of the accused - Sahil has been corroborated by the CDR which shows that the applicant was in contact with the accused - Sahil.
7.
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 Apex Court in Tofan Singh v. State of Tamil Nadu : (2021) 4 SCC 1, wherein it was held that a 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 a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a 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 a 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 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
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 a 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 a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
(emphasis supplied) 8.
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 observed that in the absence of any incriminating material, the CAF/CDR details cannot be a ground to deny the bail. The relevant para reads as under :
"Existence of any conspiracy between the applicant and Sayed Javed Hussain based on the CDRs a. It is stated by learned counsel for the Respondent that the call record details show that the applicant was in frequent contact with one Amarjit Singh Sandhu on 26.01.2021, i.e, the date when the Tramadol tablets were collected by the co-accused Sayed Javed Hussain. He further states that according to the CAF/CDR details, location of the co-accused Sayed Javed Hussain and the applicant is also found to be in Rajouri Garden on 26.01.2021.
b. In my view, in the absence of any financial dealings, any recovery of narcotic substance or psychotropic substance from the applicant or from the premises of the applicant and/or at the behest of the applicant, the fact that the CAF/CDR details show calls between the applicant and Amarjit Singh Sandhu and the applicant and Sayed Javed Hussain, cannot be a ground to deny him the bail in the present matter.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
c. It is for the prosecution to establish the guilt, abetment, conspiracy of the applicant beyond a reasonable doubt which is not borne out from the CAF/CDR details." (emphasis supplied) 9.
Apart from the disclosure statement of the co accused - Sahil, the only material against the applicant is the existence of certain call records between the applicant and the co accused - Sahil. There is no other evidence to show that the applicant was involved in the commission of the alleged offence. 10.
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 a co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the 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 coaccused, 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) 11.
At this stage, there is no other evidence to show that the applicant is involved in any manner with the co accused - Sahil. Admittedly no recovery has been effected from the applicant and in such circumstances merely because the applicant was allegedly in touch with the co-accused Sahil, 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 a gospel The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
truth.
12.
It is pertinent to note that there is no transcript of any conversation between the applicant and the accused - Sahil and the CDRs do not disclose the actual conversation that transpired. Mere contact 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. 13.
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 a finding of not guilty. It is for the limited 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 a judgment of acquittal and recording a finding of not guilty.
12. Additionally, the court has to record a 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 a conclusion."
14.
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. A 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 a 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 a person accused of offences such as those enacted under Section 37 of the NDPS Act." The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
15.
From the prima facie perusal of material on record, I am reasonably satisfied that the applicant is not guilty. 16.
It is relevant to note that co-accused - Sahil from whom recovery of contraband was made has already been enlarged on bail by order dated 25.07.2024 passed by the learned Trial Court. 17.
The role of the applicant is not graver than co-accused Sahil. The applicant is in custody since 24.09.2024. 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. 18.
In view of the facts of the case, in the opinion of this Court, the applicant has prima facie established a case for grant of bail.
19.
The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a 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;
b. The applicant shall under no circumstance leave the country without the permission of the learned Trial Court;
c.
The applicant shall appear before the learned Trial 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; e.
The applicant shall, upon his release, give his mobile The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
number to the concerned IO/SHO and shall keep his mobile phone switched on at all times.
20.
In the event of there being any FIR/DD entry/complaint lodged against the applicant, it would be open to the State to seek redressal by filing an application seeking cancellation of bail. 21.
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. 22.
The bail application is allowed in the aforementioned terms. Pending application also stands disposed of. AMIT MAHAJAN, J DECEMBER 17, 2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.