Case of prosecution cannot be wholly negated on the ground that contraband was recovered pursuant to illegal search, reaffirms Delhi HC while dismissing bail plea of accused in 760 gm heroin recovery case
Justice Vikas Mahajan [20-05-2024]

Read Order: YUNUS KHAN v. STATE NCT OF DELHI [DEL HC- BAIL APPLN. 441/2024]

LE Correspondent

New Delhi, June 10, 2024: In a case pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985 where 260 grams of heroin was recovered from the house of the petitioner-accused on the basis of the disclosure statement of co-accused from whom 500 grams of heroin was recovered, the Delhi High Court has refused to grant bail to the petitioner.

The case of the prosecution was that on the basis of a secret information, co-accused Imran was apprehended and 500 grams heroin was recovered from his possession. During investigation, it was disclosed by the co-accused in his disclosure statement that the heroin was supplied to him by the petitioner. Thereafter, the petitioner was apprehended from his rented house and from his house 260 gms of heroin was recovered besides cash amounting to Rs. 26,40,000.

The Single-Judge Bench of Justice Vikas Mahajan was considering his petition filed under Section 439 Cr.P.C. seeking regular bail in connection with FIR registered under Section 21 (c)/29 of the NDPS Act.

The Bench noted that the total quantity of contraband recovered in the present case was 760 grams of heroin, which is commercial in nature. The Status report filed by the prosecution was conspicuously silent on the incriminating material which links the present petitioner with co-accused Imran. No material in the form of CDR’s, CAF or financial transactions had been placed on the record to prima facie record a satisfaction that co-accused and the petitioner were in conspiracy with one another. In this backdrop, the Bench opined that the recovery made from co-accused Imran couldn’t be attributed to the petitioner herein. Noting that there was also no material to support tampering of sample, the Bench held that no benefit of minor deficiency in weight of the sample when weighted by the FSL, could enure to the benefit of the petitioner while considering the present bail application.

“...it is luminous that the rigours of Section 37 of the NDPS Act are applicable in the present case and only when the petitioner can satisfy that there are reasonable grounds for believing that he is not guilty can he be released on bail pending trial”, it added.

Observing that the provisions of Section 50 are applicable only when recovery has been made from the person of the accused and not from the premises of the accused as in the present case, the Bench rejected the contention of the petitioner that despite prior information, no notice under Section 50 of the NDPS Act was served on the petitioner. 

“Further, it is a trite principle of law that the case of the prosecution cannot be wholly negated on the ground that the contraband is recovered pursuant to an illegal search”, the Bench opined while referring to State of H.P. v. Pirthi Chand. It was held that the effect of non-obtaining of warrants of search under Section 41(2) of the NDPS Act before effecting recovery from the premises of the petitioner is a consideration which would be appreciated by the Trial Court.

The High Court concurred with the contention of the APP for the State that the petitioner couldn’t claim parity with co-accused Imran as he was enlarged on bail considering that contraband was recovered from his person and there was a defect in the notice under Section 50 of the NDPS Act. However, in the case of petitioner, the recovery had been made from his house and in such a scenario, the provisions of Section 50 of the Act were not applicable.

In view of such discussion, the Bench found no reasonable grounds for believing that the petitioner was not guilty of the offence alleged. Accordingly, the present petition was dismissed.