Applicant has been able to satisfy twin conditions u/s 37 of NDPS Act: Delhi HC grants bail to man accused of importing heroin concealed in mulethi logs
Justice Navin Chawla [10-04-2024]

Read Order:RAJENDER PRASAD SHARMA v. NCB [DEL HC- BAIL APPLN. 2291/2023]

LE Correspondent

New Delhi, April 16, 2024: In a bail matter where the applicant was accused of being involved in the import of heroin concealed in mulethi logs, the Delhi High Court has granted him conditional bail as twin conditions under Section 37 of the NDPS Act had been established. The High Court took note of the fact that there were reasonable grounds for believing that the applicant was not guilty and he was not likely to commit such an offence while he was on bail.

The Single-Judge Bench of Justice Navin Chawla was considering an application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) praying for the applicant to be released on bail in a Case registered under Sections 8(c), 21(c), 23, 25, 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 

It was the case of the prosecution that based on the information received, the Narcotics Control Bureau (NCB) Team, on 27.04.2022, reached a House in Okhla where they found co-accused Razi Haider Zaidi, and during search of said house, it led to the recovery of 50 packets in Flipkart packing containing off-white powdery substance. Upon testing the substance in each packet, it was found out to be Heroin. Substance of each packet was weighed and found to be 1 kg each.

Ten packets of white powdery substance, which upon testing gave no conclusive result, were also found. Pieces of wooden log Mulethi, containing suspected Heroin, was kept in bags. The weight of said bags was 15.900 kg and 17.150 kg respectively.One piece of wooden log Mulethi was found to contain Heroin.Other materials which were found were packing material of Flipkart and Amazon, Indian currency of Rs 30 lakh, documents and mobile phones.

It was further alleged that Razi Haider Zaidi, in his voluntary statement under Section 67 of the NDPS Act disclosed that the Heroin seized from the said flat was recently shifted from Muzaffar Nagar, U.P. on the direction of a co-accused, Shahid. It had been prepared at a godown at Muzaffar Nagar. The co-accused was stated to have further revealed that he had imported the said heroin in two different modes, out of which, the first lot was received in the consignment of mulethi from the applicant who is running the business as M/s R.R. Global Impex. He further disclosed that the applicant had stored the consignment of heroin at a Cold Storage.

The applicant was arrested and his mobile phone was seized. It was alleged that while in custody, the applicant tendered his statement wherein he disclosed the procedure of import of consignment of mulethi, its distribution, and other documents. Proceedings under Section 52A of the NDPS Act were carried before the Magistrate.

It was the applicant’s case that he is in the legitimate business of import of dry fruits and mulethi. He had imported and supplied mulethi to the accused against proper invoices and receipts, which were being relied upon even by the prosecution. One of the arguments made was also that the mulethi logs that were found in the said bag, however, were not tested for presence of heroin, either at the spot or later in the proceedings under Section 52A of the NDPS Act

It was the NCB’s case that the applicant is involved in the import of heroin concealed in mulethi logs. It was submitted that the entire transaction and the involvement of the applicant in the conspiracy to import the heroin was evident from various circumstantial evidence, like the CDR showing the interaction between the applicant and the coaccused; admitted supply of bags containing mulethi by the applicant to the co-accused; recovery of such bags from the premises of the coaccused; financial transactions between the applicant and the coaccused; and, their presence together at Sonipat.

Noting that the said mulethi logs were not tested for the presence of Heroin, either at the spot or later in the proceedings under Section 52A of the NDPS Act before the Magistrate, the Bench said, “Therefore, prima facie there is no evidence that the mulethi logs that has been supplied by the applicant to the accused Razi Haider Zaidi indeed had Heroin concealed in them. The only evidence of the same is in form of the alleged Voluntary Statements of the co-accused, which would be inadmissible in evidence.”

It was further opined that once the gravamen of the allegation, that the mulethi logs supplied by the applicant to the co-accused Razi Haider Zaidi contained Heroin, was not established, the only material left with the prosecution was the supply of mulethi logs by the applicant to the coaccused; their presence at the Cold Storage at Kondli, Sonepat; and their telephone connectivity. However, these alone were not sufficient to presently hold that the accused had committed the offence charged.

Noting that the prosecution merely relied upon the alleged voluntary statements under Section 67 of the NDPS Act by the applicant and the co-accused, the Bench held that these would not be admissible in nature. Reliance in this regard was placed on to the judgment of the Supreme Court in Tofan Singh v. State of Tamil Nadu.

“From the above, in my view, the applicant has been able to satisfy the twin conditions under Section 37 of the NDPS Act. There are reasonable grounds for believing that the applicant is not guilty of the offence charged against him”, the Bench held.

Further observing that the applicant does not have any criminal antecedents, he has been in custody since 05.05.2022 and also noting that the trial is not likely to conclude any time soon, the Bench granted conditional bail to the applicant on furnishing a personal bond in the sum of Rs 1 lakh.