Manvinder Singh Marwah @ Romi v State of Delhi

Manvinder Singh Marwah @ Romi v State of Delhi

Delhi High Court

18 November 2013

Bail Appln. 1759/2013

The Judgment was delivered by : Veena Birbal, J.

1. This is an application u/s 439 of Cr.P.C. for the grant of bail in case FIR No.20/2012 under Section 21/29 NDPS Act and S. 14 of the Foreigner Act P.S. Special Cell pending before the learned ASJ, New Delhi.

2. The case of the prosecution is that on the basis of secret information, the present petitioner was apprehended on 22.8.2012 at about 10.55 p.m. near Moolchand Hospital and 46 gms. of cocaine was recovered from him. As per allegations, the petitioner also disclosed that he had taken the delivery of the alleged contraband from two persons, namely, Lamba and Aik.

He further disclosed that the other person Aik is presently in Delhi and on his disclosure statement the co-accused Ernest @ Aik was apprehended from the footpath near South Extension. It is further alleged that from his possession 105 gms of cocaine was recovered. The further allegations in the charge sheet are that the present petitioner as well as co-accused in conspiracy with each other were indulging in illegal trafficking of drugs.

3. Learned counsel for the petitioner has submitted that the alleged recovery of cocaine from petitioner as is alleged is an intermediate quantity. Learned counsel for the petitioner has submitted that there is non- compliance of mandatory requirement of S. 50 of the NDPS Act.

It is contended that the petitioner was not apprised of his legal right to get his search conducted before a Gazetted Officer or a Magistrate as such there is non-compliance of S. 50 of the NDPS Act. It is contended that no public witnesses were joined, as such the provisions of S. 100 (4) of Cr.P.C. were also not complied with.

4. It is further contended that the alleged recovery of 46 gms. of cocaine falls in the category of less than commercial category and thus embargo u/s 37 of NDPS Act is not applicable. It is submitted that petitioner is in custody for the past about 8 months.

There is no previous involvement of the petitioner. The trial will take substantial time. The petitioner earlier was granted interim bail and he had not misused the same. The alleged recovery is not believable, as such petitioner be admitted to bail.

5. Learned APP has opposed the bail application. Learned APP submits that the requirement of S. 50 of NDPS Act has been fully complied with in the present case. Learned APP has submitted that notice given to petitioner under S. 50 of the NDPS Act clearly shows that the petitioner was informed of the right to be searched before a Gazetted Officer or a Magistrate. It is further submitted that the evidence is yet to be led in the present case. Prima facie, reading the wording of the aforesaid notice it cannot be said that petitioner was not informed of the right as is alleged.

Further, in the investigation it has also come that petitioner had refused to exercise his right to get him searched before a Gazetted Officer or a Magistrate.

6. As regards the alleged violation of S. 100 (4) of Cr.P.C., learned APP submits that the IO had requested the public persons to join raiding party but none of them had come forward to join. It is submitted that the same is also a subject matter of evidence as to what efforts were made by the IO for joining the independent witnesses.

At this stage, it can’t be said that no serious efforts were made by the IO to join the public witnesses. Learned counsel submits that in these circumstances, it cannot be said that the alleged recovery is bad.

7. I have considered the submissions made.

8. Perusal of trial court record shows that the charge has already been framed against the present petitioner as well as co-accused for having entered into a conspiracy for illegal trafficking of cocaine which is punishable u/s. 29 of the NDPS Act.

As per allegations, pursuant to the aforementioned conspiracy petitioner has been found in possession of 46 gms. of cocaine on 22.8.2012 at 10.55 p.m. and his co-accused has been found in possession of 105 gms. of cocaine on 23.8.2012 at 10.55 p.m. and as such committed an offence punishable u/s. 21(b) and 21(c) read with S. 29 of NDPS Act.

9. The charge against the present petitioner is also having entered into a conspiracy with the co-accused to deal in drugs. The present petitioner has been individually charged for the amount of cocaine recovered from him. He has also been charged for having entered into a conspiracy of illegal trafficking of drugs with the co-accused from whom commercial quantity of contraband has been recovered.

10. Reading the material on record, prima facie it can’t be said that S. 50 of NDPS Act was not complied with as is contended. The wordings of the said notice have been gone through. Reading the said notice it can’t be said that the petitioner was not made aware of his right to be searched before a Gazetted Officer or a Magistrate as is alleged.

Further, the material on record shows that petitioner had refused to exercise the legal right available to him under S. 50 of the NDPS Act. In the investigation it has also come that IO had made efforts to join the public witnesses as such prima facie it also can’t be said that there is violation of S. 100(4) of Cr.P.C. as is contended. Further the evidence of the prosecution is yet to start. The contentions raised are subject matter of evidence.

11. In view of the seriousness of allegations, the bail application is rejected.

12. It may be mentioned that judgment relied upon by learned senior counsel appearing for petitioner have been gone through. The same are not relevant at this stage. It is also clarified that nothing stated herein shall have any bearing on the merits of the case.

13. Trial court record be sent back forthwith through Special Messenger.

Application dismissed

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