Finding that the petitioner has no previous involvement in the offence under the NDPS case and the nominal roll reveals that the petitioner does not have any criminal antecedents, the Delhi High Court enlarged the petitioner on bail. Since the trial is evidently proceeding at a snail’s pace, with no possibility of its culmination in near future, the Court said that the delay cannot be attributed to the petitioner.
The Court opined that the veracity and evidentiary value of the alleged WhatsApp chats and CDRs are matters to be tested during the course of the trial, as the same are not substantive piece of evidence and can only be used for corroboration. At this stage, the said material cannot be treated as conclusive proof of the petitioner’s guilt to deny him the concession of bail.
The Court noted that the petitioner has been in custody for more than two years as per the nominal roll, and out of 31 cited witnesses, only 2 witnesses have been examined till date. Thus, the Court admitted the petitioner to regular bail, subject to his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the Trial Court, and further subject to various conditions.
A Single Judge Bench of Justice Vikas Mahajan observed that the Court is required to examine the material on record only to form a prima facie opinion as to whether there are reasonable grounds to believe that the accused is not guilty of the offence and whether he is likely to commit any offence while on bail, as mandated under Section 37 of the NDPS Act.
The Bench admitted that no recovery of any contraband has been effected from the personal or conscious possession of the petitioner. The recoveries were made from the premises of third-party i.e. courier companies upon the disclosure statements of the co – accused.
Therefore, as far as the disclosure statements of the co-accused persons and the petitioner’s own statement under Section 67 of the NDPS Act is concerned, the Bench referred to the Apex Court’s decision in the case of Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1], to reiterate that such statements are inadmissible in evidence and cannot form the sole basis of conviction in the NDPS case.
Further, regarding the allegation that the petitioner transported the contraband via a bus from Lucknow to Delhi, the Bench found from a prima facie perusal of the record that no independent witness, such as the bus driver or conductor, has been interrogated or cited to establish this crucial link in the chain of recovery. The absence of such independent corroboration, at this stage, has the potential of raising doubt about petitioner’s complicity.
Briefly, an information was received by Junior Intelligence Officer (JIO) of NCB/respondent, whereby it was stated that the parcel bearing lying at DHL Express Pvt Ltd., New Delhi, was suspected to contain psychotropic substance. Thereafter, at DHL Express office, the team disclosed the information to the Supervisor. The said parcel was opened in which 11 lace rolls and 3 pieces of clothes were found. After checking, one lace roll it was found to contain 120 strips of Tramadol tablets; 10 tablets in each strip. The remaining lace rolls were examined and led to the discovery of total 13200 strips of Tramadol tablets.
The contraband was seized, sealed and deposited, and the officials got the information from the owner of the DHL office that the said parcel was booked through a firm OGS Groups by one of the accused, Ganesh Chaudhary. Upon apprehension, based on the disclosure statement of Ganesh Chaudhary, second seizure was made at UPS Express Pvt Ltd., Delhi, where recovery of 15000 Zolpidem tablets was made. Further, a recovery of 19440 Tramadol tablets was made from 3 packages at Global India Express Pvt Ltd., New Delhi.
Ganesh Chaudhary disclosed that the said parcels have been booked by him for USA on the directions of co-accused Tamir Ali and petitioner and that both of them are residents of Lucknow. Further, co-accused Tamir Ali was arrested. On initial enquiry, co-accused Tamir Ali allegedly disclosed that his three other associates namely, the present petitioner i.e., Kashif, and co-accused Rizwan and Zahid, who were also involved in sending NRx Tablets to USA. Later, the petitioner tendered his voluntary statement under section 67 of the NDPS Act, in which he stated that he was involved in sending the parcel containing psychotropic substances to co-accused Ganesh Chaudhary.
Appearances:
Advocates Akshay Bhandari, Megha Saroa, Anmol Sachdeva, Kushal Kumar, Janak Raj Ambavat, and Moin Khan, for the Petitioner
Advocates Arun Khatri, Shelly Dixit, Tracy Sebastian and Devender Singh, for the Respondent
