InBail Appln. 1716/2023 -DEL HC- ‘In the absence of other incriminating material, CAF/CDR details cannot be grounds to deny bail’, rules Delhi High Court while granting anticipatory bail in NDPS case
Justice Vikas Mahajan [13-09-2023]

Read Order:Deepak Nagiya V. State (NCT of Delhi)

Chahat Varma

New Delhi, September 14, 2023: In a recent ruling, the Delhi High Court has granted anticipatory bail to a man who was accused of offenses under Sections 21/25/29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The court emphasized that in the absence of any other incriminating evidence, the Call Detail Records (CDRs) alone could not be grounds to deny bail.

The prosecution's case rested on allegationsthat the accused, Surender @ Bhalu, was intercepted by a raiding team based on secret information, and during the search, 350 gm. of heroin was found in his pant pocket. During interrogation, Surender @ Bhalu had revealed that he sold heroin in retail from his niece Neha's house. Following this disclosure, Neha was arrested, and 45 gm. of heroin and 521 gm. of a substance believed to be a cutting agent were recovered from her possession. Subsequently, Neha had disclosed that she procured heroin from Nisha Malik, who was then arrested. Nisha Malik, in turn, had disclosed that she obtained heroin from Deepak Nagiya, the petitioner in this case. The petitioner's counsel had argued that no contraband was recovered from the petitioner and that his name only came up in the disclosure statement of accused Nisha, who also had no contraband in her possession.

On the other hand, the ASC representing the State argued that the petitioner had been granted interim protection until May 12, 2023, by the Special Judge, with a directive to participate in the investigation. However, during the interrogation, the petitioner did not cooperate and attempted to mislead the investigation. Therefore, the ASC contended that the petitioner's anticipatory bail should be denied.

The single-judge bench of Justice Vikas Mahajan observed that upon reviewing the order dated 27.04.2023, through which accused Nisha Malik was granted regular bail, it was evident that Nisha Malik had been granted bail based on the fact that no recovery of contraband was made from her. Additionally, the recovery from accused Neha, who had named Nisha Malik, was of an intermediate quantity. Also, there was also nothing on record to establish a connection between Nisha Malik and the main accused, Surender @ Bhalu.

The bench also noted that according to the prosecution's case, the recovery of contraband was made from Surender @ Bhalu and Neha. Neither of these accused individuals mentioned the petitioner's name. Furthermore, there was no evidence on record to establish any connection between the petitioner and these accused persons.

The bench further noted that apart from the absence of any recovery from the petitioner and Nisha Malik, the court couldn't ignore the fact that ASI Rupesh and a middleman named Anurag were arrested by the CBI while accepting a bribe of Rs.10 lakhs from Nisha Malik and her husband Ravi Malik in connection with the present case. This raised the possibility of false implication of some of the accused, including the petitioner, at this stage.

The bench observed that the only incriminating material against the petitioner was the disclosure statement of accused Nisha Malik and CDRs showing the petitioner's family being in touch with Nisha Malik. Relying on State (by NCB) Bengaluru vs. Pallulabid Ahmad Arimutta&Anr. [LQ/SC/2022/84], the bench observed that in the absence of any other incriminating material, the CAF/CDR details cannot be a ground to deny bail.

Considering the circumstances in totality, the court was of the view that the petitioner had made out a case for the grant of anticipatory bail.