In BAIL APPLN. 1263/2022-DEL HC- Right to personal liberty is subject to restrictions by State in case of criminal offences for larger good of public & their safety: Delhi HC refuses to grant bail to accused found with 4 kg heroin
Justice Swarana Kanta Sharma [30-05-2023]

Read Order:ANKUSH Vs. THE STATE (GTNCT OF DELHI) 

Tulip Kanth

New Delhi, May 31, 2023: While observing that the magnitude of illicit drug trade and its severe impact on the lives of the consumers have to guide the Court regarding severity of the offence, the Delhi High Court has dismissed the bail application of an accused after considering the commercial quantity of heroin involved in the matter.

Considering the right of the accused to a speedy trial, Justice Swarana Kanta Sharma said, “...this Court requests the concerned learned District and Sessions Judge to ensure that the time bound matters are also distributed equally amongst the presiding officers as far as possible. Learned Trial Court is also requested to expedite the trial of the matter in this case, subject to the condition that the learned APP for the State and the learned counsel for the applicant will also not take unnecessary adjournments.”

The facts of this case were such that information had been received that one Amit indulging in drug trafficking, on direction of Mukesh and Ankush, had brought consignment of heroin for them from Bareilly, U.P. from one Sajid. Amit and Ankush had come to the Service Road, Rohini to deliver the consignment of heroin to them. 

After observing the mandatory procedures and informing the concerned ACP, Special Cell telephonically, on his direction action was taken in this regard. A raiding party led by SI Ravi Kumar and other members of the team were constituted and a trap was laid. The present applicant Ankush and Amit were apprehended and two kg of heroin was recovered from them and 2kg from the car.

The case was registered and during interrogation, the present applicant informed that he had brought the consignment of heroin from one Sajid  through his carrier Amit. He had also disclosed that he worked with Mukesh in partnership and he used to supply consignment of heroin to various persons in Delhi. They also disclosed that Mukesh used to give directions to them to supply heroin at their places. 

At the instance of present applicant, co-accused Mukesh was arrested in this case who also corroborated the facts disclosed by Amit and Ankush. CFSL report as well as voice samples of the accused persons were obtained. Transcript of the intercepted conversation was reduced into writing, and charge-sheet was filed.

The accused had approached the High Court by filing an application under Section 439 of the Code of Criminal Procedure, 1973 seeking grant of regular bail.

The Bench was of the opinion that the recovery in this case of heroin i.e. psychotropic substance is of about 2 kg from the present accused/applicant  which is a commercial quantity, therefore, bar of Section 37 of NDPS Act would be attracted in the present case. 

It was the case of the applicant that even in cases of recovery of commercial quantity of psychotropic substance where embargo of Section 37 of NDPS Act has to be considered, the Court still has to examine the ‘twin conditions’ to grant bail even in such cases.

Referring to the judgment of the Top Court in State of Kerala v. Rajesh, the Bench  agreed with this contention that the Court can consider the test of ‘twin conditions’ in a case of recovery of commercial quantity of psychotropic substance which will be considered, evaluated and adjudicated upon with caution to decide as to whether to grant or decline grant of bail.

The Bench considered the contention that the manner of drawing of sample and the delay of sending the same to FSL in itself created suspicion regarding the genuineness of the case of the prosecution. 

“This Court is, however, of the opinion that this minimal change in the weight of the drawn sample and the colour cannot become ground for grant of bail, and holding that the recovery of the psychotropic substance was under suspicion or that it was tampered with till evidence of the witnesses in this regard is recorded”, the Bench stated.

As per the Bench, there were multiple prima facie evidences which pointed towards involvement of the accused in the offence in question. The Court was confronted with evidence in the form of FSL report regarding the psychotropic substance in question, CDRs pointing out towards his involvement and constant communication with the co-accused persons. 

Other evidences included his voice samples matching with the intercepted conversation which incriminated him, the car being registered in his name from where further recovery of two kgs heroin was effected, he being arrested at the spot with the psychotropic substance, the co-accused persons being arrested on his disclosure statements. All such circumstances pointed out nothing else but a strong suspicion regarding his involvement in the present case.

“Right to personal liberty is subject to restrictions by the State in case of criminal offences for the larger good of the public and their safety. With four kgs of heroin in his possession and the number of people he was supplying it to can also be gauged from the fact that he has made 238 calls to the co-accused persons and some other persons regarding such transactions. The target groups of the drug supply are younger generation”, the Bench held while dismissing the petition.