2021 (3) TMI 1390 - HC - Indian Laws

Seeking grant of bail - recovery of heroin - intermediate quantity - offences punishable under sections 21/29 NDPS Act - HELD THAT - It is not in dispute that in the present case, 200 gms. of heroin was recovered from the petitioner which is an intermediate quantity. But as per CDR of mobile phone recovered from possession of the petitioner proves his connection with master mind of this international drug cartel, Ali Roza from where he got directions to receive drugs. Further, there is CDR connectivity of the petitioner from mobile number with co-accused Chand Basha on his mobile numbers and accused Ali on his number (Kingpin from Kuwait), accused Salim (supplier) and accused Adham Khan (Kingpin from Germany), who were in constant touch with each other. It is not in dispute that 200 gms. of heroin was recovered from the petitioner, but the total recovery in the present case is of 36.240 kgs from all the accused persons, hence, bar under section 37 of NDPS Act is attracted to the present case - bail cannot be granted to the petitioner - application dismissed.

Issues:
Grant of bail under section 439 Cr.P.C. for offences under sections 21/29 NDPS Act - Conspiracy with co-accused - Recovery of heroin - Connection with drug cartel mastermind - CDR connectivity with other accused - Recovery corroborating with disclosure statement - Application of section 37 of NDPS Act.

Analysis:

1. Grant of Bail under Section 439 Cr.P.C.:
The petition was filed seeking bail for the petitioner in connection with FIR No.34/2014 registered at Police Station Special Cell for offences under sections 21/29 NDPS Act. The petitioner argued that there was no evidence connecting him with the alleged conspiracy or the source and supply of the contraband. It was contended that the recovery of heroin from the co-accused cannot be attributed to the petitioner, who maintained clean antecedents. The prosecution failed to establish any communication record linking the petitioner with the other co-accused, leading to the claim of false implication.

2. Conspiracy with Co-accused:
The prosecution opposed the bail plea by presenting evidence such as a cash receipt from a hotel where the petitioner stayed with a co-accused to collect narcotics, along with the recovery of air tickets indicating travel with the same co-accused. The prosecution argued that these pieces of evidence corroborated with the disclosure statement of the petitioner, suggesting his involvement in a conspiracy to procure drugs. The court considered these factors in assessing the alleged involvement of the petitioner in the criminal activities.

3. Recovery of Heroin and Connection with Drug Cartel Mastermind:
While 200 gms. of heroin were recovered from the petitioner, indicating an intermediate quantity, the prosecution highlighted the petitioner's connection with the mastermind of an international drug cartel through Call Data Records (CDR) retrieved from his mobile phone. The CDR connectivity showed communication between the petitioner and various co-accused individuals, including those identified as key figures in the drug trafficking network. This evidence pointed towards a deeper involvement of the petitioner in the illicit drug trade.

4. CDR Connectivity with Other Accused:
The prosecution further emphasized the CDR connectivity between the petitioner and co-accused individuals, demonstrating a network of communication involving instructions and coordination related to drug transactions. The mobile phone records linked the petitioner to key players in the drug cartel, indicating a level of association beyond mere possession of contraband. This aspect was crucial in establishing the petitioner's role in the larger criminal enterprise.

5. Recovery Corroborating with Disclosure Statement:
The recovery of heroin from the petitioner, along with the additional evidence such as cash receipts and air tickets, aligned with the disclosure statement provided by the petitioner. These findings strengthened the prosecution's case against the petitioner, reinforcing the narrative of his active participation in the drug trafficking activities as part of a coordinated effort involving multiple individuals.

6. Application of Section 37 of NDPS Act:
Despite the arguments presented by the petitioner, the court noted that the total recovery of narcotics from all accused persons in the case exceeded 36 kgs, triggering the application of section 37 of the NDPS Act. This provision imposes restrictions on granting bail in cases involving commercial quantities of drugs. Considering this statutory provision, the court concluded that bail could not be granted to the petitioner based on the cumulative recovery and the legal framework governing such cases.

In conclusion, the court dismissed the bail petition, taking into account the various factors presented by both the petitioner and the prosecution, including the recovery of heroin, the alleged conspiracy, the CDR connectivity, and the application of relevant provisions of the NDPS Act.

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