Presence of any Senior Police Officer at the spot cannot be a ground for release of accused on bail: Delhi High Court rejects bail application of man held with 300gm heroin
Justice Swarana Kanta Sharma [30-05-2024]

Read Order: AFAAQ KHAN v. THE STATE NCT OF DELHI [DEL HC- BAIL APPLN. 774/2024]

Tulip Kanth

New Delhi, June 3, 2024:  In a case where heroin weighing about 300 grams was recovered from the possession of the accused-applicant, the Delhi High Court has refused to grant him bail as the FSL report supported the case of the prosecution and the twin conditions under Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 were not satisfied.

The Single-Judge Bench of Justice Swarana Kanta Sharma was considering an application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) filed on behalf of the applicant, in a case arising out of an FIR registered under Section 21 of the NDPS Act.

The facts of the case were such that an information was received at the Police Station regarding a person named Guddu, who used to indulge in illegal dealings of narcotic substances. It was also revealed that Guddu would come near the SDM Office, Nandnagri, to deliver narcotic substance, and if a raid was conducted, he could be apprehended. Accordingly, a trap was laid down and the accused persons, including the present applicant/ accused Afaaq Khan were apprehended. After service of notice under Section 50 of NDPS Act, narcotic substance i.e. heroine, weighing about 300 grams was recovered from the possession of the applicant, which was delivered to him by co-accused Guddu Khan. After conclusion of investigation, chargesheet was filed in the present case.

It was the case of the accused-applicant that there had been no compliance with Section 50 of NDPS Act as in the notice under Section 50, the word ‘nearest’ is missing and further the accused had refused to get his search conducted in the presence of any gazetted officer or a magistrate, then the gazetted officer was not required to be called, and in this case, ACP was called on the spot. Therefore, it was contended that this process was in breach of the provisions of Section 50. It was further stated that even the factum of recovery of commercial quantities of heroin was doubtful since the recovered substance was sent to FSL after a delay of 8 days. It is also argued that the present applicant has been in judicial custody for more than four years.

After going through the FIR, the Bench opined that the Police Officer, who had apprehended the accused at the spot, had mentioned in the FIR itself, that the co-accused Guddu Khan had taken out black polythene from the right side pocket of his bag, and had given it to the present applicant/accused. Therefore, to state that no recovery was effected from the present applicant had no merit. 

The record also revealed that a notice under Section 50 was served to both the accused persons, they had refused to exercise their legal right by getting searched from a Gazetted Officer or Magistrate, and in the meantime, the ACP had come to the spot and in his presence, the search was conducted. 

“As rightly pointed out in the impugned order, the ACP is not a witness for notice under Section 50 or recovery of the contraband. The ACP was at the spot, to supervise the proceedings, and since there is no bar on the presence of any senior officer at the spot, this cannot be a ground for release of the present accused on bail”, the Bench held.

Dealing with the contention regarding sending the samples of contraband to FSL after 8 days, the Bench opined that the same was a matter of trial as to what would be the consequence of such delay.

“The recovery in this case is of 300 grams of heroin, which is a commercial quantity and embargo under Section 37 of NDPS Act is attracted in this case. At this stage, when the applicant has been arrested at the sport receiving the narcotic substance from the co-accused and both of them were apprehended together from the spot itself, and further that the FSL report has supported the prosecution case, the twin conditions under Section 37 of NDPS Act are not satisfied”, the Bench observed.

In light of such aspects and the fact that the recovery of commercial quantity of narcotics substance was affected from the present applicant/accused from the spot, the Bench held that no ground for bail was made out.