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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2525/2024 & CRL.M.A. 21133/2024
AKIL AHMED .....Applicant
Through: Mr. Karan Verma & Ms.
Nayan Maggo, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Ajay Vikram Singh,
APP for the State.
SI Vishan Kumar (P.S.
ANTF, Crime Branch).
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
O R D E R
% 30.08.2024
1. The present application is filed seeking regular bail in FIR
No.19/2022, dated 24.02.2022, registered at police station Crime
Branch (Delhi), for offences under Sections 21/29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).
2. The case of the prosecution is that on 24.02.2022, at
around 1:00 pm, SI Naveen along with some staff of Narcotics
Cell were present in the area of Om Vihar, near Metro Pillar No.
700, Uttam Nagar in pursuit of obtaining information about drug
traffickers. It is alleged that upon noting the suspicious behaviour
of two persons, namely, one Rehan and Gulrez, the team led by
SI Naveen apprehended them, and upon inquiry learnt that they
work in supplying illegal smack from Bareilly to Delhi.
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3. It is alleged that SI Naveen was directed to take necessary
actions. It is alleged that the said information was lodged in
CCTNS vide DD No. 0065A dated 24.02.2022.
4. Notices under Section 50 of the NDPS Act were served
upon both the accused, and their refusal was recorded thereafter.
5. It is alleged that thereafter, during the search conducted, 50
gms of heroin each was recovered from the person of both
Rehan, and Gulrez. It is alleged that upon further enquiry, the
accused persons disclosed, that the applicant was also involved in
bringing Heroin from Bareilly, and is allegedly present in a
rented room in Uttam Nagar Area.
6. It is alleged SI Naveen, upon directions, and at the instance
of the apprehended Rehan, conducted a raid at H. No. WZ-59A,
Ground Floor, Om Vihar Phase-II, Uttam Nagar, and
apprehended the applicant. A notice under Section 50 of the
NDPS Act was served upon him, and the refusal of the applicant
was recorded thereafter.
7. It is alleged that upon search, 260 gms of heroin was
recovered from the person of the applicant.
8. All three accused persons, including the applicant were
arrested on 25.02.2022. It is alleged that during investigations,
the accused persons disclosed that they used to procure heroin
from one person, namely Moin Khan.
9. Charge sheet in the present case was filed under Sections
21/29 of the NDPS Act against all three accused.
10. The learned counsel for the applicant submits that the
applicant has been falsely implicated in the present case. He
submits that there are serious infirmities in the case of the
prosecution.
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11. He submits that the applicant has been apprehended on the
disclosure statement of the other two accused, namely Rehan and
Gulrez, however, the investigating agency failed to obtain a
warrant to search the premises of the applicant. He submits that
there was non-compliance of Section 42 of the NDPS Act. He
submits that the investigating agency neither obtained a warrant
to search the house of the applicant after sunset and before
sunrise, nor did it record separate reasons for not doing so.
12. He submits that there has also been a non-compliance of
Section 50 of the NDPS Act in the present case. He submits that
not only was there no gazetted officer present at the spot, nor did
the raiding team call any gazetted officer on spot. He submits that
in terms of Section 50 of the NDPS Act, not only is it imperative
on the part of the officer to apprise the accused person of his
right to be searched before the nearest Gazetted
officer/Magistrate but it is also mandatory for such officer to
produce the said accused before the nearest Gazetted
officer/Magistrate.
13. He submits that allegedly a quantity of 260 gms of smack
was recovered from the person of the applicant, however, there is
absence of any photo/video at the time of the apprehension of the
applicant. He submits that there is no independent witness in the
present case.
14. He submits that the trial is at the stage of examination of
prosecution witnesses and only one out of twenty witnesses have
been examined by the prosecution. He submits that the applicant
has been in custody since 25.02.2022, and there is a delay in trial.
15. He submits that the applicant has clean antecedents and
deep roots in the society. He further submits that the applicant be
enlarged on bail on the ground of parity since the other three
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accused in the present case namely, Rehan, Gulrez and Moin
Khan have already been granted bail by the learned Trial Court.
16. Per contra, the learned Additional Public Prosecutor for
the State vehemently opposes the grant of bail to the applicant.
He submits that the applicant is involved in drug trafficking, and
260 gms of heroin was recovered from his possession.
17. He submits that since 260 gms of heroin was recovered
from the possession of the applicant, and the bar under Section
37 of the NDPS Act is attracted.
18. He submits that the applicant cannot be granted bail on the
ground of parity, since there was no recovery from accused Moin
Khan; and as regards the other two accused, namely Rehan and
Gulrez, the recovered contraband was only of an intermediate
quantity, that is, 50 gms each.
19. He submits that the defences of the applicant in regard to
any procedural anomalies would be a matter of trial, and the
applicant should not be granted bail at this stage.
Analysis
20. It is settled law that the Court, while considering the
application for grant of bail, has to keep certain factors in mind,
such as, whether there is a prima facie case or reasonable ground
to believe that the accused has committed the offence;
circumstances which are peculiar to the accused; likelihood of
the offence being repeated; the nature and gravity of the
accusation; severity of the punishment in the event of conviction;
the danger of the accused absconding or fleeing if released on
bail; reasonable apprehension of the witnesses being threatened;
etc.
21. It is unequivocally established that, to be granted bail, the
accused charged with offence under the NDPS Act must fulfill
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the conditions stipulated in Section 37 of the NDPS Act. Section
37 of the NDPS Act reads as under:
“37. Offences to be cognizable and non-bailable.—(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)—
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under Section 19 or Section 24 or
Section 27-A and also for offences involving
commercial quantity shall be released on bail or
on his own bond unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor oppose the
application, the court is satisfied that there
are reasonable grounds for believing that he
is not guilty of such offence and that he is
not likely to commit any offence while on
bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations under
the Code of Criminal Procedure, 1973 (2 of 1974), or any
other law for the time being in force, on granting of bail.”
22. The accusation in the present case is with regard to the
recovery of commercial quantity of contraband. Once the rigours
of Section 37 of the NDPS Act are attracted, as provided under
the Section, the Court can grant bail only when the twin
conditions stipulated in Section 37(1)(b) of the NDPS Act are
satisfied in addition to the usual requirements for the grant of bail
– (1) The court must be satisfied that there are reasonable
grounds for believing that the person is not guilty of such
offence; and (2) That the person is not likely to commit any
offence while on bail.
23. The learned counsel for the applicant submits that a liberal
interpretation of Section 37 of the NDPS Act must be taken into
account by the Court in the present case on the following
grounds:
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a) Illegality in the notice served under Section 50 of the
NDPS Act in so far as the search of the accused was not
conducted in the presence of a Gazetted Officer or a
Magistrate;
b) Non-joinder of independent witnesses and no
photography/videography; and
c) Delay in trial.
24. Section 50 of the NDPS Act outlines the conditions under
which a search of a person is to be conducted, specifying that
such a search must be performed in the presence of a Gazetted
Officer or a Magistrate if the individual so requests. This
provision is intended to safeguard the rights of individuals and
ensure the fairness and integrity of the search process. This Court
in the case of Bantu vs. State Govt of NCT of Delhi: 2024:
DHC: 5006, while noting that the judgment passed by a
coordinate bench of this Court in the case of Mohd. Jabir v. State
(NCT of Delhi) (supra), is under consideration before the
Hon’ble Apex Court, held that the essence of Section 50 of the
NDPS Act— to inform the suspect of his right to be searched
before the Gazetted Officer or a Magistrate — was
communicated to the accused person, and any failure in strictly
adhering to the precise language in the notice should not
undermine the overall compliance if no prejudice is shown.
25. It was observed that prejudice to the applicant is to be seen
by the procedural lapse in such a case. In the present case, prima
facie, the applicant has not been able to establish any prejudice
caused to him. Infirmities in the procedure, if any, will be tested
during the course of the trial.
26. In the present case, the accused was duly informed of his
statutory right to be searched before the Gazetted Officer or a
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Magistrate, as stipulated under Section 50 of the NDPS Act.
However, the accused voluntarily declined to exercise this right.
The issue whether this refusal, following the police officials
intimating him of his rights, leads to non-compliance with
Section 50 of the NDPS Act or affects the legality of the
subsequent search and seizure is a nuanced question and the same
is a matter of trial and cannot be looked into at this stage.
27. The learned counsel for the applicant also contends that
though the recovery was made from the person of the applicant,
that too, when he was in his house, there is an absence of any
public witness. This Court in the case of Bantu v. State Govt of
NCT of Delhi (supra) has observed that while the testimony of
police witness is sufficient to secure conviction if the same
inspires confidence during the trial, however, lack of independent
witnesses in certain cases can cast a doubt as to the credibility of
the prosecution’s case.
28. Primarily, it is the prosecution’s case that it did not have
sufficient time to obtain a house search warrant before the raid
was conducted. Even if for argument’s sake it is assumed that the
raiding team did not have sufficient time to obtain house search
warrant, the fact that it did not find any public witness, and that
there is a complete lack of photography and videography in
today’s time casts a doubt to the credibility of the evidence.
29. A bald statement has been made, as stated in the
chargesheet filed, that the nearby neighbours were apprised of the
entire situation, and had been asked to take part in the police
action, however, they refused to join the investigation and closed
their gates. Futhermore, no notice under Section 100 (8) of the
CrPC was given to any person on the refusal to support the
Investigating Agency during the search procedure.
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30. This Court in Bantu v. State Govt of NCT of Delhi
(supra), noted that the Hon’ble Apex Court, way back in the year
2018 in Shafhi Mohd. v. State of H.P. : (2018) 5 SCC 311, after
taking note of the technological advancements, had passed
certain directions. The Hon’ble Apex Court had emphasised the
role of audio-visual technology in enhancing the efficacy and
transparency in the Police investigations.
31. This Court also noted that realising the need of change in
time, the Legislature has now passed the Bharatiya Nagarik
Suraksha Sanhita, 2023 (‘BNSS’), where the practice of
photography and videography has now been made mandatory as
part of the investigation.
32. This Court further noted that the procedure prescribed in
NCB Handbook which has been adopted by the Delhi Police may
be argued to be not binding, however, it cannot be denied that the
same has been prescribed as the best and crucial practice for
obtaining evidence in order to avoid the allegation in regard to
foul play.
33. Thus, while it is true that the effort, if any, made by the
prosecution to have the search conducted in the presence of the
independent witnesses would be tested during the course of trial
and the same may not be fatal to the case of the prosecution,
however, the benefit, at this stage, cannot be denied to the
accused. The raid was conducted inside the premises, there is no
justification why no photo/video of the proceedings at the time of
apprehension of the applicant were made. It is also not the case
of the prosecution that equipments were not available to
videograph and photograph the search/seizure. Even otherwise, it
cannot be denied that almost every person today carries a smart
phone with a camera installed in it.
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34. This Court has come across a number of cases where the
investigating authority has in fact done photography and
videography of the recovery. It is peculiar that the investigating
authorities, understanding the importance of such additional
evidence, makes efforts to belie allegations of false implication
and endorse the recovery of contraband by photography and
videography in some cases, but fails to undertake any steps to do
the same in other cases.
35. Even if the explanation tendered by the prosecution for
non- joinder of independent witnesses is to be believed, it is more
peculiar that despite the same, evidently, no effort to photograph
or videotape the recovery has been made by the prosecution in
the present case to endorse the credibility of the recovery.
36. Delay in trial and long period of incarceration is also an
important factor which has to be kept in mind while considering
the application for bail.
37. In the present case, the matter is at the stage of prosecution
evidence. It is stated that only one witness has been completely
examined out of twenty witnesses. The applicant has been in
custody since 25.02.2022. There is no likelihood of the trial
being completed in the near future.
38. It is trite law that grant of bail on account of delay in trial
cannot be said to be fettered by the embargo under Section 37 of
the NDPS Act. The Hon’ble Apex Court, in the case of Mohd.
Muslim v. State (NCT of Delhi) : 2023 SCC OnLine SC 352
has observed as under:
“21….Grant of bail on ground of undue delay in trial, cannot
be said to be fettered by Section 37 of the Act, given the
imperative of Section 436A which is applicable to offences
under the NDPS Act too (ref. Satender Kumar Antil supra).
Having regard to these factors the court is of the opinion that
in the facts of this case, the appellant deserves to be enlarged
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on bail.
22. Before parting, it would be important to reflect that laws
which impose stringent conditions for grant of bail, may be
necessary in public interest; yet, if trials are not concluded
in time, the injustice wrecked on the individual is
immeasurable. Jails are overcrowded and their living
conditions, more often than not, appalling. According to the
Union Home Ministry's response to Parliament, the National
Crime Records Bureau had recorded that as on
st
31 December 2021, over 5,54,034 prisoners were lodged in
20
jails against total capacity of 4,25,069 lakhs in the country .
Of these 122,852 were convicts; the rest 4,27,165 were
undertrials.
23. The danger of unjust imprisonment, is that inmates are at
risk of “prisonisation” a term described by the Kerala High
21
Court in A Convict Prisoner v. State as “a radical
transformation” whereby the prisoner:
“loses his identity. He is known by a number. He loses
personal possessions. He has no personal relationships.
Psychological problems result from loss of freedom, status,
possessions, dignity any autonomy of personal life. The
inmate culture of prison turns out to be dreadful. The
prisoner becomes hostile by ordinary standards. Self-
perception changes.”
24. There is a further danger of the prisoner turning to
crime, “as crime not only turns admirable, but the more
professional the crime, more honour is paid to the
22
criminal” (also see Donald Clemmer's ‘The Prison
23
Community’ published in 1940 ). Incarceration has further
deleterious effects - where the accused belongs to the
weakest economic strata : immediate loss of livelihood, and
in several cases, scattering of families as well as loss of
family bonds and alienation from society. The courts
therefore, have to be sensitive to these aspects (because in
the event of an acquittal, the loss to the accused is
irreparable), and ensure that trials - especially in cases,
where special laws enact stringent provisions, are taken up
and concluded speedily.”
(emphasis supplied)
39. The Hon’ble Apex Court in Rabi Prakash v. State of
Odisha : 2023 SCC OnLine SC 1109, while granting bail to the
petitioner therein held as under :
“4. As regard to the twin conditions contained in Section 37
of the NDPS Act, learned counsel for the respondent - State
has been duly heard. Thus, the 1st condition stands
complied with. So far as the 2nd condition re: formation of
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opinion as to whether there are reasonable grounds to
believe that the petitioner is not guilty, the same may not be
formed at this stage when he has already spent more than
three and a half years in custody. The prolonged
incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional liberty
must override the statutory embargo created under Section
37(1)(b)(ii) of the NDPS Act.”
40. The Hon’ble Apex Court in Badsha SK. v. The State of
West Bengal (order dated 13.09.2023 passed in Special Leave
Petition (Crl.) 9715/2023), granted bail to the petitioner wherein
who had been in custody for more than two years with the trial
yet to begin.
41. Similarly, in Man Mandal & Anr. v. The State of West
Bengal (order dated 14.09.2023 passed in Special Leave
Petition (Crl.) 8656/2023 decided on 14.09.2023), the petitioner
therein had been in custody for almost two years and the Hon’ble
Apex Court found that the trial is not likely to be completed in
the immediate near future. The petitioner was, therefore, released
on bail.
42. In Dheeraj Kumar Shukla v. State of U.P. : 2023 SCC
OnLine SC 918, the Hon’ble Apex Court released the petitioner
therein on bail, and observed as under:
“3. It appears that some of the occupants of the Honda City‟
Car including Praveen Maurya @ Puneet Maurya have since
been released on regular bail. It is true that the quantity
recovered from the petitioner is commercial in nature and
the provisions of Section 37 of the Act may ordinarily be
attracted. However, in the absence of criminal antecedents
and the fact that the petitioner is in custody for the last two
and a half years, we are satisfied that the conditions of
Section 37 of the Act can be dispensed with at this stage,
more so when the trial is yet to commence though the
charges have been framed.”
43. A Coordinate Bench of this Court in Gurpreet Singh v
State of NCT of Delhi : 2024:DHC:796, considered the effect of
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delay and observed as under:
“16. In addition to the above, only 2 (two) out of 22
witnesses have been examined by the prosecution, and that
too partially, though more than three and a half years have
passed since the arrest of the applicant. It may be true that
the reason for the delay in the conclusion of the trial may
be for various factors, may be not even attributable to the
prosecution, like Covid 19 pandemic and restricted function
of the Courts, however, as long as they are not attributable
to the applicant/accused, in my view, the applicant would
be entitled to protection of his liberty under Article 21 of
the Constitution of India. Delay in trial would, therefore, be
one of the consideration that would weigh with the Court
while considering as application filed by the accused for
being released on bail.”
44. From the foregoing, it is evident that despite the stringent
requirements imposed on the accused under Section 37 of the
NDPS Act for the grant of bail, it has been established that these
requirements do not preclude the grant of bail on the grounds of
undue delay in the completion of the trial. Various courts have
recognized that prolonged incarceration undermines the right to
life, liberty, guaranteed under Article 21 of the Constitution of
India, and therefore, conditional liberty must take precedents
over the statutory restrictions under Section 37 of the NDPS Act.
45. The applicant is also stated to be of clean antecedents.
46. Appropriate conditions can be put to allay any
apprehension of the applicant committing another offence of a
similar nature while on bail.
47. In such circumstances, this Court is of the opinion that the
applicant has made out a prima facie case for grant of bail on the
grounds of absence of independent witnesses and prolonged
delay in the trial.
48. The applicant is, therefore, directed to be released on bail
on furnishing a personal bond for a sum of ₹1,00,000/- with two
sureties of the like amount, subject to the satisfaction of the
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learned Trial Court, on the following conditions:
a. The applicant shall not directly or indirectly
make any inducement, threat, or promise to any
person acquainted with the facts of the case or
tamper with the evidence of the case, in any
manner whatsoever;
b. The applicant shall under no circumstance leave
the boundaries of Delhi without informing the
concerned SHO;
c. The applicant shall appear before the learned
Trial Court as and when directed;
d. The applicant shall provide the details of his
permanent address where he would be residing
after his release to the learned Trial Court and
intimate the Court, by way of an affidavit, as
well as to the IO about any change in his
residential address;
e. The applicant shall, upon his release, give his
mobile number to the concerned IO/SHO and
shall keep his mobile phone switched on at all
times.
49. In the event of there being any FIR/DD entry / complaint
lodged against the applicant, it would be open to the State to seek
redressal by filing an application seeking cancellation of bail.
50. 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 and also not be
taken as an expression of opinion on the merits of the case.
51. The bail application is allowed in the aforementioned
terms.
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52. The pending applications are also disposed of.
AMIT MAHAJAN, J
AUGUST 30, 2024
(cid:145)Aman(cid:146)
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