The petition field under section 439 of Cr.P.C seeking bail in section 21 of NDPS act registered at police station crime branch. A secrete information was received by the police that a person named Guddu khan is carrying illegal Heroine for dealing near SDM office, Nand Nagri and delivering the same. Hence as per the information, the police laid down a trap in the intervening night of 20-21.08.2020. Guddu Khan along with Aafaq Khan caught red handed. Heroine weight 300 grams was also recovered from them. The learned council for the petitioner submitted that the petitioner here is an auto driver and the he further submitted that the allegation made by the police is falsely implicated as the place of occurrence is very busy and there is no such evidence is found even there is no such independent witness of the effect of recovery of contraband from the petitioner and the arrest was from the alleged place of occurrence and witness were police officials. He further submitted that police has neither taken any CCTV footage nor recorded any CDR of the petitioner on record. He further sated that the petitioner is in judicial custody since 21.08.2020 and no response serve by keeping him in judicial custody.
The APP for the state stated that the Heroine caught during the arrest of the petitioner is of commercial quantity under section 37 of NDPS act. The APP further submitted that if the petitioner are released on bail there are chances of absconding. The learned council also stated that 300 grams is the commercial quantity and it clearly shows the petitioner’s complicity in the crime and it will be unreasonable to believe him not guilty of crime. It was further stated that 300 grams is not only subject to contain under limitation under section 439 of Cr.P.C but also under section 37 of NDPS act. And as far as the CCTV footage and CDR not recorded by the police does not take much ice from the petitioners case as for not founding guilty for the offence there must be two conditions which need to be satisfied. The first is that the prosecution must be given an opportunity to oppose the application and the second is the court must be satisfied that there are reasonable ground that he is not guilty and the prosecution fails to prove both of them.
The court by hearing the arguments from both the sides stated that as the petitioner was under incarceration only for three years two months which is not even half of minimum sentence of ten years. The limitation prescribed under section 37 of the NDPS act is also not satisfied so, the bail application pending before the court is dismissed.
Referred Judgement :
Sunil vs. State of NCT of Delhi (Bail Appln. 495/2022)
Anita vs. State (Bail Appln. 1538/2022)
Sachala Nayak vs. State (3351/2021)
Tarsem Singh vs. State of Punjab (CRM- M No.55431/2021)
Sukhdev Singh vs. State of Punjab (CRM-M No. 53872/2021)
Sufiya vs. State of Chhatisgarh (MCRC No. 5548/2022)
Anita @ Kallo vs. State (Bail Appln. 957/2023)
Mohd. Muslim vs. State (2023 SCC Online 352)
Suraj vs. State (2023 SCC Online Del 5323)
Kasif vs. NCB (Bail Appln. 253/2023)
Case name : Guddu Khan v. State of NCT of Delhi, 22 December, 2023
Name : SupriyaCourse : B.A.LL.B (5TH) Semester, Maharishi University of Information Technology, intern under legal vidhiya.
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