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TMI Blog2024 (2) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... out 2:30, on the basis of secret information received by Shri Anand Kumar, IO, a recovery of 135 grams of Cocaine was made from the house of the co-accused Justin Izuchukwu Samuel. It is the prosecution's case that the said accused in his statement revealed the name of the applicant, whose involvement in illegal trafficking of drugs was further corroborated by the CAF and CDR of the co-accused Justin, and the WhatsApp chats between them. The applicant was arrested on 25.11.2021, and has remained in custody since then. 3. The applicant's bail application was rejected by the learned Trial Court by order dated 22.02.2022, and later again by order dated 19.09.2022, due to the embargo under Section 37 of the NDPS Act. SUBMISSIONS OF THE APPLIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by order dated 19.09.2022. He stated that all the grounds of the applicant, including his contention that no recovery has been effected from him directly, have been effectively dealt by the learned Trial Court and requires no interference. 11. He placed heavy reliance on the CDR and WhatsApp conversations between the applicant and the co-accused to impress upon this Court that both of them were in constant touch, and were actively dealing in drug trafficking. 12. He submitted that the applicant has been accused of a serious offence of conspiracy for indulging in drug-trafficking of commercial quantity of contraband-Cocaine. He contended that the matter is at the stage of arguments on charge, and the applicant's release at this stage c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier Manoj. Further the entire case of the prosecution, in so far as petitioner is concerned is circumstantial i.e. based solely on disclosure statement of a co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts. Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner. 12. I am of the view that requirement of Section 37 of the NDPS Act are sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the co-accused. The applicant, therefore, was arrested and made accused in the present case on the basis of the disclosure statement of the co-accused, which as discussed above, is not admissible without any corroborative evidence, and on the basis of the alleged WhatsApp chats, which, admittedly, were exchanged about ten months prior to the recovery of the contraband from the coaccused. 21. The respondent has contended that the applicant cannot be enlarged on bail unless the conditions laid down in Section 37 of the NDPS Act are met. 22. The Hon'ble Apex Court, in the case of Union of India v. Shiv Shanker Kesari : (2007) 7 SCC 798, has observed as under: "11. The court while considering the application for bail with reference to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act." 24. Another significant aspect which cannot be lost sight of is that the recovery of the contraband was made on 18.06.2021 whereas the application under Section 52A of the NDPS Act was filed belatedly on 24.09.2021. There is no explanation as to why the application was filed belatedly, however, the same, at this stage, appears to be in violation of Section 52A of the NDPS Act, thereby vitiating the procedure for collection of sample. This Court in Kashif v. Narcotics Control Bureau : 2023 SCC OnLine Del 2881, had held that the application for sample collection cannot be moved at the whims and fancies of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the address where he would be residing after his release and shall not change the address without informing the concerned IO/ SHO;
e. He shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times.
28. In the event of there being any FIR/DD entry / complaint lodged against the applicant, it would be open to the respondent to seek redressal by way of filing an application seeking cancellation of bail.
29. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the Trial.
30. The bail application is allowed in the aforementioned terms. X X X X Extracts X X X X X X X X Extracts X X X X
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