Delhi High Court – Orders
Tanveer Alias Prince vs State Nct Of Delhi on 4 September, 2024
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1280/2024
TANVEER ALIAS PRINCE .....Petitioner
Through: Mr. Rahul Sharma, Mr. Kshitij Goel,
Mr. Gaurav Raghuvanshi, Mr.
Deepak Ghai, Advs.
Mr. Arvind Vats, Adv.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Raghuinder Verma, APP for State
and SI Arvind Kumar, PS ER-1,
Crime Branch.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 04.09.2024
1. The present bail application has been filed under Section 439 Cr.P.C.
for grant of regular bail to the accused in case FIR No. 121/2023
registered under Section 21/29 NDPS Act at PS Crime Branch.
2. Briefly stating, on 21.05.2023, co-accused Reena was arrested as
contraband i.e., 400 grams heroin was recovered from her possession.
During interrogation she disclosed the name of co-accused Gaurav as
source of recovered contraband and accused Rahul @ Bunty as receiver
of the contraband. She also identified photograph of accused Rahul@
Bunty by his dossier. On 23.05.2023, at the instance of co-accused
Reena, co-accused Gaurav was apprehended. Co-accused Gaurav
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disclosed the name of further source of supply of contraband i.e.,
Heroin as accused Tanveer @ Prince and also disclosed his mobile
number through which he used to talk with accused Tanveer @ Prince
regarding supply of Heroin.
3. During investigation, three notices under section 67 NDPS Act were
served upon the accused Mohd. Tanveer, however, he did not join the
investigation. Proceedings under section 82 CrPC were initiated against
accused Mohd. Tanveer @ Prince. Thereafter, he surrendered before the
court and after obtaining permissions from the court, he was arrested.
During interrogation, he disclosed that he was procuring heroin supply
from one Nigerian National “Frank”, who used to meet him in the area of
Deowli, Tilak Nagar and Salket, Delhi.
4. Learned counsel for the petitioner submits that the petitioner is in
custody since 24.11.2023. Learned counsel submits that no recovery
was affected from the present petitioner. It has further been submitted
that the petitioner was arrested merely on the disclosure statement of
co-accused Gaurav. It has been submitted the only evidence available
with the prosecution is the call detail records between the petitioner and
the co-accused. Learned counsel submits that therefore in absence of
any recovery having been affected from the petitioner and merely on
the basis of call detail record, the petitioner’s fundamental right of
liberty cannot be curtailed. Therefore, the petitioner may be admitted to
bail.
5. Learned APP for the State has vehemently opposed the grant of bail to
the petitioner and submits that this is a fit case where Section 29 of the
NDPS Act can be imposed. Learned APP submits that on the disclosure
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statement of Reena accused Gaurav was arrested and from his
possession to mobile phones make iPhone having mobile number
8800359204 and OPPO mobile phone without Sim Card were
recovered. Learned counsel submits that at his disclosure statement the
present petitioner was arrested. The petitioner disclosed his mobile
number 8287838936. Accused Gaurav also disclosed the mobile
number of the present petitioner as 8287838936. Learned counsel
submits that in fact Gaurav has not cooperated with the investigation
and during the investigation it was found that mobile number
8287106522 was also running from 21.02.2023 to 17.05.2023.
6. Learned APP submits that the mobile number of the present petitioner
8287838936 was also found saved in the OPPO mobile phone of co-
accused Gaurav in the name of “Meenu 2”. It has been submitted that
as per CDR analysis of mobile number 8287106522 of co-accused
Gaurav, there were total 19 called from 24.04.2023 to 15.05.2023
between co-accused Gaurav and mobile number 8287838936 belonging
to the petitioner. Learned counsel submits that it is pertinent to mention
that Reena was arrested on 21.05.2023 with commercial quantity. It has
also been submitted that the mobile number 8287838936 was found
registered in the name of one Dharam Veer. However, Dharam Veer
stated that he lost his mobile phone.
7. Learned APP submits that CDR of mobile number 8287838936 of the
petitioner was analyzed and it was found that maximum call 1123 were
made by petitioner on mobile number 8745814034 which is found
registered in the name of Gaurav S/o Raja Ram who is a friend of the
petitioner. Learned APP therefore submits that there are enough
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material on the record to show that the petitioner was using mobile
number 8287838936 and there were 19 calls between co-accused
Gaurav and the petitioner from 24.04.2023 to 15.05.2023. Learned
APP further submits that the investigation has also revealed that there
were WhatsApp Chat between Reena and co-accused Gaurav showing
that co-accused Gaurav was a supplier. Learned APP submits that the
CDR shows that there was regular interaction between co-accused
Gaurav and the petitioner during the relevant time period.
8. Learned APP for the state has relied upon the judgment of Awadhesh
Yadav vs. State Govt. of NCT of Delhi, Bail Appln. 1692/2023.
Learned APP submits that the coordinate bench of this Court after
taking into account the material pointing out to the conspiracy inter alia
held that in view of the overwhelming incriminating material on record,
which cannot be negated at this stage of bail, there is no reasonable
ground for believing that the petitioner is not guilty of the alleged
offence. Learned APP therefore submits that the petitioner may not be
entitled to be admitted to bail. Learned APP has also relied upon
Ridhm Rana vs. State (NCT of Delhi) 2022 SCC OnLine Del 771.
Learned APP has also submitted that the charges have also been framed
against the petitioner under Section 29 r/w Section 21(c) NDPS Act.
9. I have considered the submissions. The bail during the course of the
trial can only be denied taking into account the gravity of the offence,
antecedents of the accused, non-possibility of accused attending the
trial and other attending circumstances. Besides the rigors provided in
Cr.P.C., there are special provisions in the NDPS Act which provides
further restriction on the grant of bail. However, it is a settled
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proposition that though the statutory provision as contained in Section
37 of the NDPS Act which prescribes the conditions that are required to
be satisfied or conditions on which a person accused of an offence
under the act can be released. However, the Constitutional Courts have
time and again directed that the court has to read these provisions along
with the fundamental rights as granted in Article 21 of the Constitution
of India. It is no longer res integra that Section 37 does not impose a
blanket ban on the grant of the bail. In Mohd. Muslim v. State (NCT of
Delhi), 2023 SCC OnLine SC 352, the Apex Court while dealing with
the rigors of Section 37, inter alia held as under:
“19. The conditions which courts have to be cognizant of
are that there are reasonable grounds for believing that the
accused is “not guilty of such offence” and that he is not
likely to commit any offence while on bail. What is meant by
“not guilty” when all the evidence is not before the court? It
can only be a prima facie determination. That places the
court’s discretion within a very narrow margin. Given the
mandate of the general law on bails (Sections 436, 437 and
439, CrPC) which classify offences based on their gravity,
and instruct that certain serious crimes have to be dealt
with differently while considering bail applications, the
additional condition that the court should be satisfied that
the accused (who is in law presumed to be innocent) is not
guilty, has to be interpreted reasonably. Further the
classification of offences under Special Acts (NDPS Act,
etc.), which apply over and above the ordinary bail
conditions required to be assessed by courts, require that
the court records its satisfaction that the accused might not
be guilty of the offence and that upon release, they are not
likely to commit any offence. These two conditions have the
effect of overshadowing other conditions. In cases where
bail is sought, the court assesses the material on record
such as the nature of the offence, likelihood of the accusedBAIL APPLN. 1280/2024 Page 5 of 10
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cooperating with the investigation, not fleeing from justice :
even in serious offences like murder, kidnapping, rape, etc.
On the other hand, the court in these cases under such
special Acts, have to address itself principally on two facts:
likely guilt of the accused and the likelihood of them not
committing any offence upon release. This court has
generally upheld such conditions on the ground that liberty
of such citizens have to – in cases when accused of offences
enacted under special laws – be balanced against the public
interest.”
10. The perusal of this judgment makes it clear that the Court has to
interpret this provision reasonably. Courts assessing bail applications
must carefully navigate between two key conditions: consider a
reasonable satisfaction on a prima facie look at the material present on
record and the assurance that the accused will not commit another
crime while on bail. Sections 436, 437, and 439 of the CrPC mandate
that bail decisions account for the gravity of the offence, with more
stringent requirements for serious crimes. Additionally, Special Acts
like the NDPS Act impose extra conditions, necessitating a court’s
satisfaction that the accused might not be guilty and that they pose no
further risk of committing crimes if released. These conditions often
take precedence over other factors, such as cooperation with the
investigation or flight risk. Thus, the court’s role under these laws
involves a nuanced balance between upholding individual liberty and
addressing public safety concerns, particularly when special laws
apply.
11. The prosecution has mainly opposed the bail on the ground that the
CDR shows the telephonic calls between the petitioner and co-accused
Gaurav. The similar question was examined by the coordinate bench of
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this Court in Anwar vs. The State (NCT of Delhi) Bail Appln.
180/2024 vide order dated 28.03.2024 it was inter alia held that
evidentiary value of CDR can only be tested during the trial. The
reliance was placed on Deepak Nagiya v. State (NCT of Delhi), 2023
SCC OnLine Del 5641 it was inter alia held as under:
“20. The only incriminating material against the petitioner
is the disclosure statement of accused Nisha Malik and
CDRs showing the petitioner’s family being in touch with
said Nisha Malik. Though disclosure statement of co-
accused Nisha Malik under Section 67 of the NDPS Act is
not admissible per se in view of the decision of the Supreme
Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC
1, but even if the advantage of the same is not extended to
the petitioner at this stage of considering his anticipatory
bail application in view of the decision of Supreme Court in
State of Haryana v. Samarth Kumar : (Crl.A.1005/2022),
wherein it has been observed that the advantage of Tofan
Singh (supra) perhaps can only be taken at the time of
arguing the regular bail application or at the time of final
hearing after conclusion of the trial but not at the stage of
anticipatory bail, still it cannot be overlooked that co-
accused Nisha, who has named the present petitioner has
already been granted regular bail on the ground that no
recovery of contraband has been made from her.
Further, recovery from the co-accused Neha was also of
intermediate quantity and there is nothing on record to
connect her to the petitioner on one hand and to the main
accused Surender @ Bhalu on the other hand. xxx xxx xxx
24. Insofar as the CDRs are concerned, I am of the view
that the evidentiary value of the same shall be seen at the
stage of the trial and it cannot be a ground to deny
anticipatory bail to the petitioner at this stage. I am
supported in my view by the judgment of the Supreme Court
in State (by NCB) Bengaluru v. Pallulabid Ahmad Arimutta,
(2022) 12 SCC 633, the relevant paragraph of which reads
as under:–
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“12. It has been held in clear terms in Tofan Singh v.
State of T.N. [Tofan Singh v. State of T.N., (2021) 4
SCC 1 : (2021) 2 SCC (Cri) 246], that a confessional
statement recorded under Section 67 of the NDPS Act
will remain inadmissible in the trial of an offence
under the NDPS Act. In the teeth of the aforesaid
decision, the arrests made by the petitioner NCB, on
the basis of the confession/voluntary statements of the
respondents or the co-accused under Section 67 of the
NDPS Act, cannot form the basis for overturning the
impugned orders [Pallulabid Ahamad Arimutta v.
State, 2019 SCC OnLine Kar 3516], [Mohd. Afzal v.
Union of India, 2020 SCC OnLine Kar 3433], [Munees
Kavil Paramabath v. State, 2020 SCC OnLine Kar
3431], [Abu Thahir v. State, 2019 SCC OnLine Kar
3517], [Mohd. Afzal v. Union of India, 2020 SCC
OnLine Kar 1294], [Munees Kavil Parambath v. State
of Karnataka, 2020 SCC OnLine Kar 3432] releasing
them on bail. The CDR details of some of the accused
or the allegations of tampering of evidence on the part
of one of the respondents is an aspect that will be
examined at the stage of trial……”
12. The coordinate bench of this court relying upon the judgment of Amit
Ranjan v. Narcotics Control Bureau, Delhi, 2022 SCC OnLine Del
1532. In Amit Ranjan (Supra) the contentions of the application were
similar to those of the present case. It was urged that no recovery was
made on the accused and the only incriminating evidence was
disclosure statement of co-accused persons.
13. The prosecution had relied upon the CDR details. However, it was inter
alia held that this being a matter of trial cannot be the singular reason
for denial of bail. Similarly, in Memboob Khan vs. State GNCT of
Delhi, Bail Appln. 2474/2023 there was no recovery of contraband
from the applicant. The prosecution in that case also relied upon the
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call detail records. The coordinate bench of this court inter alia held
that as far as the call detail record which allegedly shows that the
appellant was in touch with the co-accused prior to the date of
apprehension, there was no recorded conversation and this can at best
only raise a suspicion. In the present case also there were allegedly 19
calls between the petitioner and co-accused Gaurav. However, there is
no recorded conversation and there is no other material to link such
calls with the recovery.
14. It is also pertinent to mention here that in Toofan Singh v. State of
Tamil Nadu, (2021) 4 SCC 1 it was inter alia held that the disclosure
statement cannot be taken at the stage of bail to deny the bail. It is no
longer res integra that the advantage of the law laid down in Toofan
Singh (Supra) can be availed out by the accused at the stage or arguing
a regular bail application. It has also been submitted that the charge-
sheet has already been filed.
15. In view of the facts mentioned herein above, the petitioner is admitted
to regular bail on furnishing a personal bond of Rs. 50,000/- with one
surety of the like amount subject to the satisfaction of Ld. Trial Court
subject to the following conditions:
a) the Petitioner shall cooperate in the investigation and appear
before the Investigating Officer of the case as and when required;
b) the Petitioner shall under no circumstances leave India without
prior permission of the Court concerned;
c) the petitioner shall report to concerned SHO/IO once in a month;
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d) the Petitioner shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the
facts of the case;
e) the Petitioner shall provide his mobile number(s) to the
Investigating Officer and shall keep it operational at all times;
f) In case of change of residential address and/or mobile number, the
Petitioner shall intimate the same to the Investigating Officer/
Court concerned by way of an affidavit.
16. The application stands disposed of.
17. A copy of this order be sent to concerned jail superintendent for
necessary compliance.
DINESH KUMAR SHARMA, J
SEPTEMBER 4, 2024/AR/HT..
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