"Single transaction being stretched to bring it within series of transactions"
NEW DELHI: While granting bail to Rahul Mahajan in the drug abuse case on Wednesday, Special Judge Swarna Kanta Mehra said the police had not been able to distinguish between providing finances for a single transaction of drugs for personal consumption and a series of financial transactions for trade in narcotics.
"At this stage, it prima facie appears that a single transaction is being stretched in the facts of the instant case to bring it in the ambit of a series of transactions so as to make it a case under Section 27(A) of the Narcotic Drugs and Psychotropic Substances Act. This is not tenable," Ms. Mehra observed.
"When a specific question was put to the investigating agency regarding the evidence collected by them against Mr. Mahajan so as to make his acts fall under the ambit of Section 27(A), the prosecution said he was arrested on the disclosure statement of co-accused Sahil Zaroo, who was arrested on his own disclosure statement with no recovery effected pursuant to the statement," Ms. Mehra said.
Also, the "white powder" found and sent for forensic examination had allegedly been recovered from Bibek Moitra, former private secretary of late Bharatiya Janata Party leader Pramod Mahajan.
From the statement of Karan Ahuja, a prosecution witness, it was clear that Sahil had told Karan that it was Moitra who was the influential person whom he wanted Karan to meet and not Mr. Mahajan. Karan also did not say that the money for buying the drugs was paid by Mr. Mahajan, the order said.
"I cannot lose sight of the fact that Karan was present at 7 Safdarjung Road at the time of the alleged transaction, and as per him, it was Moitra who had met Sahil at the place of occurrence and had taken him inside the house, and no money was paid by Mr. Mahajan to Sahil for buying the contraband," the order said.
No recovery made
"The prosecution wanted this court to believe that the present case is that of a series of financial transactions on the basis of confessional statement of accused Sahil, inadmissible in law since no recovery could be effected from him pursuant to his disclosure statement," Ms. Mehra said.
"This court cannot presume that the balance of Rs. 2,500, which Mr. Mahajan had allegedly asked Sahil to keep while making a payment of Rs. 15,000 to him for the drug bought, was paid for a previous transaction of drugs or for any future transaction which never took place; more so when the presumption has to be on the basis of inadmissible confessional statement of a co-accused," the order said.
Pulling up the Delhi police for shifting their stand on the quantity of the drug recovered, Ms. Mehra said: "I wonder if they were not clear about the quantity, where was the need or the basis to mention the quantity before the Metropolitan Magistrate, A.K. Chaturvedi, while seeking police remand of the accused.
"The prosecution shifted their stand on the quantity of drug from 5 gm to 7 gm of heroin on the basis of the disclosure statement of Sahil. It seems to be an afterthought clearly since Sahil was already in the custody of police when it was mentioned that the quantity of heroin was five gm," Ms. Mehra stated.