SALMAN Vs. STATE GOVT. OF NCT OF DELHI

JUDGEMENT

(1.) The instant application under Sec. 439 read with Sec. 482 of Code of Criminal Procedure, 1973 ('Cr.P.C.') has been filed on behalf of applicant seeking regular bail in case FIR bearing no. 152/2022, registered at Police Station Daryaganj for offences punishable under Ss. 21/29/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act").

(2.) Briefly stated, the facts of the case are that on 25/3/2022, pursuant to a secret information received informing that co-accused Arif can be caught with smack near Mahavir Vatika, a raiding team had been constituted, after following the prescribed procedure. On the same day, at about 10:40 PM, secret informer had identified the co-accused Arif, who was seen coming from NS Marg to Ansari road, Mahavir Vatika, and was carrying a bag on his right shoulder. Thereafter, two persons had come near Arif and had asked him whether he had brought smack for them to sell. Immediately thereafter, the raiding team had surrounded the three persons i.e. co-accused Arif, present applicant Salman, and co-accused Naeem. After giving notice under Sec. 50 of NDPS Act and calling the concerned ACP on the spot, the raiding team had carried out the search of accused persons. Upon conducting search, the team had found a plastic box inside the sports bag carried by co-accused Arif, in which a plastic polythene of white colour was found, containing smack (morphine) like substance. The team had then tested the substance using NDPS testing kit and it was found to be morphine. The plastic polythene containing the morphine had then been weighed, which was found to be 340 grams i.e. commercial quantity. All the three accused persons were arrested on 26/3/2022. During investigation, it was revealed that co-accused Arif had received the plastic box containing morphine from one Parvez, who runs a juice shop in Delhi, and the box had been carried from Shambhal, Uttar Pradesh to Delhi by one Arshad (co-accused), who ferried passengers and goods from Shambhal to Delhi in his car. Thereafter, Call Detail Records of co-accused Arif were obtained, and it was found that on 24/3/2022, Arif had talked to co-accused Arshad. Thereafter, co-accused Arshad had also been arrested, who had disclosed that he was involved in carrying parcels of morphine from Sambhal to Delhi, in his car, on a commission basis.

(3.) Learned counsel for the present accused/applicant argues that the applicant has been in judicial custody since 26/3/2022, but he has been falsely implicated in the present case, and no recovery has been affected from him. It is also stated that applicant is entitled to bail on the ground of parity since the main accused Arif, from whom the recovery of contraband was affected, has been granted bail by the Hon'ble Supreme Court vide order dtd. 28/7/2023. It is further stated that notice served to applicant herein is defected since an option to get himself searched before the nearest gazetted officer or Magistrate was given and not just any gazetted officer or Magistrate was not given to him. It is stated that applicant herein is willing to abide by all terms and conditions, and therefore, the present bail application be allowed.