For granting bail u/s 37 of the NDPS Act, it has to be prima facie shown that the accused is not guilty: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 3045 2019 KALE RAM @ KALU RAM Reserved on: Pronounced on: 08.02.2022 10.03.2022 .....Petitioner Through: Mr. A.K. Sahu Advocate with petitioner produced Versus NARCOTICS CONTROL BUREAU .....Respondent Through: Mr. Subhash Bansal Sr. St. Counsel with Mr. Shashwat Bansal Adv. HON BLE MR. JUSTICE RAJNISH BHATNAGAR O R D E R RAJNISH BHATNAGAR J. This is a petition filed by the petitioner under section 439 of Cr.P.C. for grant of regular bail in SC.No.8605 of 2016 under Sections 20 & 29 NDPS ACT registered at Police Station NCB. The brief facts of the case are that on secret information accused Raghav Sehajpal Krishan Chand and Ram Lal were apprehended and from the possession of accused Raghav 220 gm of charas was recovered and two parcels containing 399 and 925 gm of charas were recovered from Kishan Chand and Rs. 65000 were recovered from accused Ram Lal. It is further BAIL APPLN. 3045 2019 alleged that accused persons in their statements under Section 67 NDPS Act admitted their involvement. It is further alleged that accused Raghav Sehajpal in his statement under Section 67 of NDPS Act has disclosed the name of the present petitioner and his mobile number. It is further alleged that co accused Raghav disclosed that he used to get the contraband through Kale Ramthrough conductors and drivers who sometimes used to give money in cash and sometimes used to deposit money in HDFC bank accounts. It is further alleged that many transactions were found to have taken place between accused Raghav and petitioner Kale Ram and accused petitioner Kale Ram disclosed in his statement under Section 67 of NDPS Act that he gave five packets to Kishan Chand and Ram Lal with instructions to give the packets to Raghav Sehejpal. I have heard the learned counsel for the petitioner and learned senior standing counsel for the respondent NCB. I have also perused the status report and the records of this case. It is submitted by the learned counsel for the petitioner that the petitioner is in custody since 14.03.2015. It is further submitted by learned counsel for the petitioner that co accused Raghav Sehajpal and Ram Lal are on regular bail. He further submitted that the petitioner did not possess any contraband and he is charged with conspiracy with co accused. It is further submitted by the learned counsel for the petitioner that the petitioner was arrested on the disclosure statement of the co accused and has been falsely implicated. He further submitted that the petitioner has deep roots in BAIL APPLN. 3045 2019 the society and has family to support. Learned counsel for the petitioner further submitted that as per the allegations in the complaint the element of conspiracy with the other co accused person is missing. He further submitted that the bank slips which are exhibited in the court are not bearing the signature of co accused Raghav and different signatures are appearing on them. He further submitted that there is no evidence to show that the amount of Rs.65 000 which according to the prosecution was deposited by co accused Raghav Sehajpal in the account of petitioner was in relation to sale and purchase of contraband. On the other hand it is submitted by the learned senior standing counsel for the NCB that co accused Raghav Sehajpal on apprehension categorically disclosed that he used to get contraband from Kale Ram i.e. present accused petitioner through drivers and conductors and used to make payment in cash or sometimes deposit money in HDFC bank account of the petitioner. The verification of the bank account of present petitioner shows that number of transactions have taken place between both and the said fact is also corroborated through the statements under Section 67 NDPS Act of the accused persons. He further submitted that there is an entire chain including the drivers and conductors involved in the trade. Learned senior standing counsel further submitted that the petitioner Kale Ram is the main accused who used to deal in the contraband through the other co accused and there is a recovery of commercial quantity of charas in this case. He further submitted that at this stage the court is not supposed to prejudge the BAIL APPLN. 3045 2019 evidence and the petitioner is unable to show even prima facie that he is not guilty of such offence and also that there is an embargo u s 37 of the NDPS Act in granting bail to the petitioner. In the instant case co accused Raghav Sehajpal has been released on bail vide order dated 06.06.2015 as he was found in possession of intermediate quantity of charas. The other co accused who has been released on bail is Ram Lal as nothing was recovered from him except Rs.65 000 which according to the prosecution was received by him from co accused Raghav Sehajpal. In the present case there is no recovery of any contraband from the petitioner and as per the prosecution no amount has been recovered from his bank account. The recovery of Rs.65 000 has been effected from co accused Ram Lal which according to the prosecution was received by him from co accused Raghav Sehajpal both of whom are already on bail. As far as the question of voluntary statement of the petitioner under Section 67 of the NDPS Act is concerned in the absence of any recovery of any drugs from the petitioner it will be a debatable issue whether the disclosure statement made by the co accused is admissible against the him or not and in this regard reliance can be placed upon the judgment of the Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu16 SCC 31. Looking into the facts and circumstances of this case and the fact that two co accused are already on bail nothing has been recovered from the petitioner in the form of contraband or money which according to the BAIL APPLN. 3045 2019 prosecution has changed hands during the conspiracy alleged to have been hatched by petitioner and his co accused therefore in these circumstances the embargo of Section 37 of NDPS Act does not come in the way in granting bail to the petitioner as far as the facts of the present case is concerned. I am also 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. 9. It is not the case of the prosecution that petitioner has been involved in any case of similar nature. Reference may be had to the judgment of the Supreme Court in Ranjit Singh Brahmajeet Singh Sharma Vs. State of Maharashtra 5 SCC 294 wherein while referring to an identically worded provision under Maharashtra Control of Organized Crimes Act 1999 the Supreme Court held that the satisfaction is with regard to likelihood of not committing the offence under the Act and not any offence 10. Therefore in the facts and circumstances discussed hereinabove and without commenting upon the merits of the case and considering the fact that the petitioner is in judicial custody since 14.03.2015 he is admitted to bail on his furnishing personal bond in the sum of Rs. 50 000 with one surety in the like amount to the satisfaction of the learned Trial Court. The petitioner shall not leave the country without the prior permission of the concerned Trial Court. 11. The petition stands disposed of accordingly. BAIL APPLN. 3045 2019 12. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of the case. MARCH 10 2022 ib RAJNISH BHATNAGAR J BAIL APPLN. 3045 2019 

Summary: It has to be shown prima facie that the accused is not guilty of such offence and also that there is an embargo u/s 37 of the NDPS Act in granting bail to the accused. The Court should have satisfaction with regard to likelihood of him not committing the offence under the Act or any offence whatsoever and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE RAJNISH BHATNAGAR in the case of KALE RAM @ KALU RAM vs. NARCOTICS CONTROL BUREAU [BAIL APPLN. 3045/2019] on 10.03.2022. The facts of the case are that on secret information accused Raghav Sehajpal, Krishan Chand and Ram Lal were apprehended and from the possession of accused Raghav 220 gm of charas was recovered and two parcels containing 399 and 925 gm of charas were recovered from Kishan Chand and Ram Lal. Further it was alleged that accused persons in their statements admitted their involvement. The co-accused Raghav disclosed that he used to get the contraband through petitioner through conductors and drivers who sometimes used to give money in cash and sometimes used to deposit money in HDFC bank accounts. Therefore, this petition has been filed by the petitioner under section 439 of Cr.P.C. for grant of regular bail NDPS ACT. The petitioner’s counsel submitted that the petitioner is in custody whereas, the co-accused – Raghav Sehajpal and Ram Lal are on regular bail. It was further submitted that the petitioner did not possess any contraband, and he is charged with conspiracy with co-accused. It was further submitted that the petitioner has deep roots in the society and has family to support. The counsel contended that as per the allegations in the complaint, the element of conspiracy with the other co-accused person is missing. The respondent’s counsel submitted that that there is an entire chain including the drivers, and conductors involved in the trade. It was further submitted that the petitioner Kale Ram is the main accused who used to deal in the contraband through the other co-accused, and there is a recovery of commercial quantity of charas in this case. He further submitted that at this stage, the court is not supposed to prejudge the evidence and the petitioner is unable to show even prima facie that he is not guilty. According to the facts and circumstances and considering the fact that the petitioner is in judicial custody, the Court granted bail to the accused petitioner. The Court observed that, “the petitioner has to show prima facie that he is not guilty of such offence and also that there is an embargo u/s 37 of the NDPS Act in granting bail to the petitioner. The Court should have satisfaction with regard to likelihood of him not committing the offence under the Act or any offence whatsoever.” Click here to read the Judgment