IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.01.2024
Pronounced on: 28.02.2024
BAIL APPLN. 3148/2021
VISHWAJEET SINGH …. Petitioner
Through: Mr.Satya Bhushan, Adv.
versus
STATE (NCT OF DELHI) ….. Respondent
Through: Mr.Aman Usman, APP with SI Mahesh, PS Badarpur, Insp. Jagjeevan Ram.
BAIL APPLN. 2382/2023
DEV KUMAR @ GOLU….. Petitioner
Through: Mr.Satya Bhushan, Adv.
versus
STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Mr.Aman Usman, APP with SI Mahesh PS Badarpur, Insp. Jagjeevan Ram.
CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT
1.These applications have been filed under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) seeking grant of bail to the accused persons/Applicants in FIR No.564/2020 registered at Police Station: Badarpur, South-East District, New Delhi under Sections 20/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’) and the
consequential criminal case, being SC No.267/2021, titled State v. Vishwajeet Singh Etc. pending adjudication before the Court of the learned Additional Sessions Judge-04, Special Judge (NDPS Act),
South-East District, Saket Courts, New Delhi (hereinafter referred to as the ‘Trial Court’).
2.As both the Applicants have been arrayed as co-accused in the above FIR and have taken identical pleas seeking grant of Bail, these applications are being dealt with and considered by this Court by way
of this common judgment.
CASE OF THE PROSECUTION:
3.It is the case of the prosecution that on 02.12.2020, at about 8:30 PM, Head Constable Man Mohan along with Sub-Inspector Virender and Head Constable Vindyachal had apprehended two persons who were coming on foot towards Badarpur from Faridabad side and were carrying bags on their back. During checking of the red-coloured bag carried by the accused Vishwajeet Singh, and the black-coloured bag carried by accused Dev Kumar, six browncoloured packets in each of the said bags were recovered. It is stated that on checking the brown packets, a Cannabis like substance was found in all the packets, therefore, information regarding the apprehension and the recovery of the narcotic substance was given to the Police Station: Badarpur by HC Man Mohan, which was duly recorded vide DD No.64A.
The same was handed over to SI Jagjeevan Ram for further necessary action.
4.The prosecution alleges that SI Jagjeevan Ram along with Constable Rajesh reached at Badarpur Picket, where the accused persons along with the recovered narcotic substances in their bags
were handed over to SI Jagjeevan Ram.
5.It is alleged that the Notice under Section 50 of the NDPS Act was served on both the Applicants. information was also given to ACP/ Special Division, Badarpur who also reached the place of the
incident. On the directions of the ACP, further bodily search of both apprehended persons were conducted by SI Jagjeevan Ram, but no recovery was effected from their possession.
6. It is alleged that an independent witness namely Mr.Rupesh Gupta was also involved in the seizure process.
7.The Applicants are stated to be formally arrested on 03.12.2020 at 2:20 AM and 2:30 AM respectively. Their mobile phones were also seized and taken into police custody.
8.It is alleged that the accused Vishwajeet Singh disclosed that he had started the sale/purchase of illegal Cannabis in 2017, along with his friend Sujeet Chauhan. It is stated that he also disclosed that Sujeet Chauhan has been supplying Cannabis to one person namely Manish in Delhi. It is alleged that he further disclosed that on 02.12.2020, at the instance Manish, he had met co-accused Dev Kumar @ Golu at Bhogal Bus Stand, and both had gone to Agra Cantt. Railway Station, from where they picked two bags filled with packets of Ganja from the railway track.
9.It is further alleged that on 07.12.2020, the recovered Cannabis was produced before the learned Duty Magistrate for sampling under Section 52A of the NDPS Act and the procedure of drawing samples
and other proceedings was conducted.
10.It is further alleged that the co-accused Sujeet was found arrested in another case arising out of the FIR No.30/2021 registered at Police Station: Kotwali, Eta Dehat, Uttar Pradesh under Section 20 of the NDPS Act, while co-accused Manish has been arrested in the proceedings emanating from the FIR No.05/2021 registered at the Police Station: Kotwali, Eta Dehat, Uttar Pradesh under Section 20 of
the NDPS Act. The Status Report indicates that both the co-accused persons are yet to be interrogated.
11.The prosecution further alleged that the CDR of the mobile numbers of the accused persons were obtained, and during examination of CDR details, it was revealed that accused Vishwajeet
Singh had talked to accused Dev Kumar @ Golu telephonically 9 times on 02.12.2020. The CDR details of accused Vishwajeet Singh revealed that he had gone to Agra Cantt. from Bhogal, New Delhi. The location of accused as per his mobile number’s location, at 7:01:32 AM on 02.12.2020 was at Bhogal Jangpura, Delhi while at 01:58:07 PM, he was at Agra Cantt. Railway Station, Uttar Pradesh. The accused Vishwajeet Singh had talked telephonically 94 times to Manish on his mobile phone between 01.10.2020 to 02.12.2020 and on 02.12.2020 he is alleged to have talked to Manish 16 times. It is alleged that Manish in turn had telephonically talked with the accused Dev Kumar, 8 times on 02.12.2020 and 44 times between 01.10.2020 and 02.12.2020. It is alleged that the CDR details of the accused
persons revealed that they had gone to Agra Cantt. from Delhi at the directions of Manish to bring the parcels of Ganja. It is further alleged that the samples of the contrabands recovered from the accused were sent to FSL, Rohini for examination and in the report, it has been opined that the same was ‘Ganja’ (Cannabis).
12.The learned Trial Court, vide order dated 07.12.2021, framed charges under Section 20(c) read with Section 29 of the NDPS Act against the accused.
Submission of the Learned Counsel for the Applicants:
13.The learned counsel for the Applicants submits that it is the case of the prosecution itself that only 12 kg of Ganja was allegedly recovered from the possession of each one of the Applicants. The same is an intermediate quantity and, therefore, the provision of Section 37 of the NDPS Act, which applies to commercial quantities, cannot be invoked against the applicants. Placing reliance on the judgment of the Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujrat, (2005) 7 SCC 550; of the High Court of Punjab & Haryana dated 23.03.2022 in CRM-M-35082-2021 titled Nirmala v. State of Punjab; and of the Bombay High Court in Sagar Nana Borkar v. State of Maharashtra Neutral Citation no. 2023:BHC-AS:27660, he submits that merely because two individuals were found carrying narcotic substance, Section 29 of the NDPS Act cannot be invoked against them, nor the quantity recovered from each of them clubbed to make it a commercial quantity to attract the rigours of Section 37 of the NDPS Act.
14.He further submits that the alleged CDR, on the basis of which Section 29 of the NDPS Act is being invoked by the prosecution, are not admissible in evidence. He submits that the alleged mobile phones
recovered from the personal search of the Applicant, Dev Raj, had different IMEI numbers. He submits that there is also a doubt on the very recovery of the mobile phone from the said Applicant.
15.He further submits that the Search and Seizure was carried out between sunset and sunrise without recording the belief, as is required under Section 42(1) of the NDPS Act, thereby, making the search and
seizure inadmissible in evidence. He places reliance on the judgment of Supreme Court in Mohinder Singh v. State, Panaji, Goa, AIR 1995 SC 1157.
16.He further submits that the packets allegedly recovered from the accused persons were opened by HC Man Mohan, who is not an empowered officer under Section 42 of the NDPS Act, thereby compromising the very recovery, making it inadmissible in evidence.
17.He further submits that the application under Section 52A of the NDPS Act was allegedly moved by SI Vivek Gautam, that too without inventory, and not by the Officer-In-Charge of the Police Station: Badarpur. He submits that SI Vivek Gautam was neither the Officer-In-Charge nor the empowered officer as defined in Section 53 of the Act, nor the Officer who carried out the seizure proceedings on
the spot. He submits that, therefore, the alleged proceedings conducted under Section 52A of the NDPS Act are illegal. Reliance in this regard is placed on the judgment of this Court in Rohit v. Central
Bureau of Narcotics 2020 SCC OnLine Del 1584.
18.He further submits that the chargesheet itself states that, though the samples were drawn on 07.12.2020, it was only on 01.04.2021, on the refusal of the FSL to accept these samples, that they were
produced before the learned Metropolitan Magistrate for the signature of the learned Metropolitan Magistrate. He submits that the chargesheet further records that the learned Metropolitan Magistrate
refused to sign the samples. He submits that, therefore, there is nothing on record to show as to how the samples were later deposited with FSL without the signatures of the learned Metropolitan Magistrate.
19.He submits that there is also no incriminating link with the alleged recovery of the contraband and the substance produced before the learned Metropolitan Magistrate for drawing samples. The Malkhana Register has not been placed on record. In support, he places reliance on the judgments of the Supreme Court in Valsala v. State of Kerala AIR (1994) SC 117 and State of Rajasthan v. Gurmail
Singh (2005) 3 SCC 59.
20.He further submits that the alleged independent witness namely Mr.Rupesh Gupta (PW-1) has not supported the case of the prosecution in his evidence. PW-2 (ASI Man Mohan) has made contradictory statements including on having signed the Seizure Memo and samples having been drawn on the spot. He has further deposed that no mobile phone was recovered from the personal search of the accused.
21.The learned counsel for the Applicants, on the basis of the above, submits that the accused have been able to cast grave doubt on the case of the prosecution and are, therefore, entitled to be released
on Bail.
22.He submits that the Applicants have been in custody since 03.12.2020, that is, a period of more than three years and they have, otherwise, clear antecedents with no criminal case except the present
one. Placing reliance on the judgment of the Supreme Court in Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109, he submits that the Applicants are entitled to be released on bail. Submission of the learned APP:
23.On the other hand, the learned APP for the State submits that in the present case, it was only a chance recovery of narcotics from the accused. He submits that, therefore, the provisions of Section 43 of the NDPS Act will not be applicable in the facts of the present case.
24.He further submits that there is material on record in the form of CDR details, which shows that the Applicants were in constant touch with each other through their mobile phones, therefore, there is
evidence of them having acted in conspiracy with each other. He submits that, therefore, Section 29 of the NDPS Act has rightly been invoked against the accused persons. He places reliance on the
judgment of this Court in Awadhesh Yadav v. State Govt of NCT of Delhi, Neutral Citation no.2023:DHC:8529.
25.He submits that the plea of the learned counsel for the Applicants that the provisions of Section 52A of the NDPS Act have not been complied with or that there are contradictions in the statement of ASI Man Mohan, are matters which are to be considered in the trial and cannot be a ground for the release the Applicants on bail, at this stage.
26.He submits that mere delay in trial is also not a ground to release the accused persons on bail in such heinous crimes.
ANALYSIS AND FINDINGS:
27.I have considered the submissions of the learned counsels for the parties.
28.It is the case of the prosecution that the two accused persons were found travelling together and were apprehended together on 02.12.2020. They were carrying bags from which 12 kg of Ganja each
was recovered. Though individually the quantity recovered would be intermediate, the prosecution by analysing the CDR details of the accused persons, alleges that as they were acting in conspiracy with
each other, the quantity recovered from both of them have to be clubbed together making it a commercial quantity.
29.In Amarsingh Ramjibhai Barot (Supra), the Supreme Court held that merely because the accused persons were found together but were individually carrying the recovered substance, in the absence of
any other evidence to suggest that there was any abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act, said provision cannot be invoked. The said case was, however,
considering the order of conviction passed by the High Court.
30.In Nirmala (Supra) and Sagar Nana Borkar (Supra), unlike the present case, the prosecution had not alleged any other material/evidence against the accused but for them being travelling together with contraband.
31.A learned Single Judge of this Court in Awadhesh Yadav (Supra), after referring to the various precedents on the issue of clubbing together of the quantities of contraband recovered individually, observed as under:
“49. From the provisions of law and the essence of case-laws, as discussed above, following principles can be culled out governing clubbing of the quantity of contraband recovered from two or more coaccused, at the stage of bail: i. invocation of offence of abutment and/or conspiracy under Section 29 of the Act is must for clubbing of quantity. However, there cannot be a straight jacket formula for clubbing the quantity of contraband recovered from all the accused, merely on the basis of invocation of offence under Section 29 of the Act. It will depend on the factual backdrop of each case and the incriminating material available against the accused persons.
ii. the incriminating material relied upon to invoke the offence of abutment and/or conspiracy under Section 29 of the Act, has to be cogent and convincing against each one of the accused charged
with the offence of abetment and/or conspiracy.
iii. in a case where joint recovery of contraband has been effected from two or more co-accused, the recovered contraband cannot be equally divided amongst the number of accused to determine whether the quantity of contraband recovered in “commercial quantity” or not.
iv. where accused persons are travelling together in the same private vehicle individually carrying contraband, it will not be proper to consider the alleged recovery to be an individual recovery
and the contraband recovered from all persons can be clubbed.
v. if an accused is a habitual offender, it gives rise to an inference that he knows the tricks of the trade. In such a situation, previous involvement of the accused in the case(s) under the NDPS Act, is an additional factor which could be considered, besides other incriminating circumstances, for adding
the quantities of contraband recovered from two or more co-accused.”
32.Applying the above test, at this stage of the proceedings, the invocation of Section 29 of the NDPS Act against the accused persons cannot be faulted. The submission made by the learned counsel for the Applicants shall have to be considered on the appreciation of evidence that is led by the prosecution before the learned Trial Court, and cannot be pre-judged by this Court at this stage.
33.Section 42 of the NDPS Act reads as under: “42. Power of entry, search, seizure and
arrest without warrant or authorisation.—(1)
Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the
departments of central excise, narcotics,
customs, revenue intellegence or any other
department of the Central Government
including para-military forces or armed forces
as is empowered in this behalf by general or
special order by the Central Government, or
any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, police or any
other department of a State Government as is
empowered in this behalf by general or special
order of the State Government, if he has
reason to believe from personal knowledge or
information given by any person and taken
down in writing that any narcotic drug, or
psychotropic
substance,
or
controlled
substance in respect of which an offence
punishable under this Act has been committed
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 11 of 27
or any document or other article which may
furnish evidence of the commission of such
offence or any illegally acquired property or
any document or other article which may
furnish evidence of holding any illegally
acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of
this Act is kept or concealed in any building,
conveyance or enclosed place, may between
sunrise and sunset,—
(a) enter into and search any such
building, conveyance or place;
(b) in case of resistance, break open any
door and remove any obstacle to such
entry;
(c) seize such drug or substance and all
materials used in the manufacture
thereof and any other article and any
animal or conveyance which he has
reason to believe to be liable to
confiscation under this Act and any
document or other article which he has
reason to believe may furnish evidence
of the commission of any offence
punishable under this Act or furnish
evidence of holding any illegally
acquired property which is liable for
seizure or freezing or forfeiture under
Chapter VA of this Act; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has
reason to believe to have committed any
offence punishable under this Act:
Provided that in respect of holder of a
licence for manufacture of manufactured
drugs or psychotropic substances or
controlled substances granted under this Act
or any rule or order made thereunder, such
power shall be exercised by an officer not
below the rank of sub-inspector:
Provided further that if such officer has
reason to believe that a search warrant or
authorisation cannot be obtained without
affording opportunity for the concealment of
evidence or facility for the escape of an
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 12 of 27
offender, he may enter and search such
building, conveyance or enclosed place at any
time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any
information in writing under sub-section (1) or
records grounds for his belief under the
proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate
official superior.”
34.
For the said Provision to be invoked, the officer mentioned in
the said Section should have the reason to believe from personal
knowledge or because of an information given by any person and
taken down in writing, that any narcotic drug, psychotropic
substances, or controlled substances or any documents in relation
thereto is kept or concealed in any building, conveyance or enclosed
place. In the present case, the case of the prosecution is that this was a
chance recovery. There was no prior information or any suspicion,
otherwise, when the accused were stopped/apprehended at the police
picket.
35.
In Mohinder Singh (Supra), the Supreme Court has held that
the NDPS Act being pre-emptive legislation, the interpretation has to
be strict. However, in my opinion, the same cannot come to the
assistance of the accused at this stage of the trial.
36.
This, however, leaves me with the two important submissions
of the learned counsel for the Applicants. The first being that the
mandate of Section 52A of the NDPS Act has not been complied with,
and there is no evidence as to how the samples were sent to FSL for
obtaining its opinion. The second submission of the learned counsel
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 13 of 27
for the Applicants is that SI Vivek Gautam who filed the application
under Section 52A of the NDPS Act before the learned Metropolitan
Magistrate, was not an empowered officer under Section 53 of the
NDPS Act nor the officer who carried out seizure proceedings on the
spot.
37.
Sections 52 and 52A of the NDPS Act are reproduced herein
below:
“52. Disposal of persons arrested and articles
seized.—(1) Any officer arresting a person
under section 41, section 42, section 43 or
section 44 shall, as soon as may be, inform
him of the grounds for such arrest.
(2) Every person arrested and article seized
under warrant issued under sub-section (1) of
section 41 shall be forwarded without
unnecessary delay to the Magistrate by whom
the warrant was issued.
(3) Every person arrested and article seized
under sub-section (2) of section 41, section 42,
section 43 or section 44 shall be forwarded
without unnecessary delay to—
(a) the officer-in-charge of the nearest
police station, or
(b) the officer empowered under section
53.
(4) The authority or officer to whom any
person or article is forwarded under subsection (2) or sub-section (3) shall, with all
convenient despatch, take such measures as
may be necessary for the disposal according to
law of such person or article.
52A. Disposal of seized narcotic drugs and
psychotropic substances.— (1) The Central
Government may, having regard to the
hazardous nature, vulnerability to theft,
substitution, constraint of proper storage
space or any other relevant consideration, in
respect of any narcotic drugs, psychotropic
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 14 of 27
substances,
controlled
substances
or
conveyances, by notification in the Official
Gazette, specify such narcotic drugs,
psychotropic
substances,
controlled
substances or conveyance or class of narcotic
drugs, class of psychotropic substances, class
of controlled substances or conveyances,
which shall, as soon as may be after their
seizure, be disposed of by such officer and in
such manner as that Government may, from
time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic
substances,
controlled
substances
or
conveyances has been seized and forwarded to
the officer-in-charge of the nearest police
station or to the officer empowered under
section 53, the officer referred to in subsection (1) shall prepare an inventory of such
narcotic drugs, psychotropic substances,
controlled
substances
or
conveyances
containing such details relating to their
description, quality, quantity, mode of
packing, marks, numbers or such other
identifying particulars of the narcotic drugs,
psychotropic
substances,
controlled
substances or conveyances or the packing in
which they are packed, country of origin and
other particulars as the officer referred to in
sub-section (1) may consider relevant to the
identity of the narcotic drugs, psychotropic
substances,
controlled
substances
or
conveyances in any proceedings under this Act
and make an application, to any Magistrate
for the purpose of—
(a) certifying the correctness of the
inventory so prepared; or
(b) taking, in the presence of such
magistrate, photographs of such drugs,
substances or conveyances. and
certifying such photographs as true; or
(c) allowing to draw representative
samples of such drugs or substances, in
the presence of such magistrate and
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 15 of 27
certifying the correctness of any list of
samples so drawn.
(3) Where an application is made under subsection (2), the Magistrate shall, as soon as
may be, allow the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1972) or the
Code of Criminal Procedure, 1973 (2 of
1974), every court trying an offence under this
Act, shall treat the inventory, the photographs
of narcotic drugs, psychotropic substances,
controlled substances or conveyances and any
list of samples drawn under sub-section (2)
and certified by the Magistrate, as primary
evidence in respect of such offence.”
38.
A reading of the above Provisions would show that any article
seized under Section 42, 43 and 44 of the NDPS Act shall be
forwarded without unnecessary delay to the Officer-In-Charge of the
nearest Police Station or the officer empowered under Section 53 of
the NDPS Act. Sub-Section (2) of Section 52A of the NDPS Act
further states that the Officer-In-Charge of the nearest Police Station
or the officer empowered under Section 53 of the NDPS Act or under
Section 52(1) of the NDPS Act, shall prepare an inventory of the
narcotics drug, psychotropic substances, controlled substances or
conveyances or any evidence, and shall make an application to any
Magistrate for the purpose of certifying the correctness of the
inventory so prepared and for taking photographs of the same and
being certified by the Magistrate, and for allowing to draw
representative samples of such drugs or substances in the presence of
such Magistrate and certifying the correctness of any list of samples so
drawn. SI Vivek Gautam is not shown to be the person before whom
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 16 of 27
the seizure was made nor, presently, it is shown that he is the OfficerIn-Charge of the Police Station or the officer empowered under
Section 53 or 52A(1) of the NDPS Act.
39.
This apart, the charge-sheet filed in the present case inter-alia
states as under:
“During the investigation of the case on
28/01/2021, Const Vijay No-2178/SE along
with Packets of Samples of Ganja in the case
vide RC No-5/21/2021, Dated-28/01/2021 was
sent to FSL, Rohini to deposit the samples. The
Samples could not be deposited the Chemistry
Division of FSL, Rohini and officials asked to
sent the samples through fresh forwarding
letter. Again on 30/03/2021, samples of Ganja
of present case was sent to FSL, Rohini
through Const Vijay No-2178/SE, vide RC No35/21/2021, Dated-30/03/2021. The Samples
could not be deposited the Chemistry Division
of FSL, Rohini and officials asked to get
signed the sample packets by Magistrate who
had done sampling and sealed the parcels in
the present case which was not signed by the
Magistrate on 07/12/2020 when sampling was
done. Later, on 01/04/2021, samples were
produced before Shri Bhanu Pratap Singh, Ld
MM, South East Saket, Delhi, and he was
requested to sign the samples so that samples
can be deposited in the FSL for examination
but Ld MM not signed the sample parcels of
the case and due to which samples of
recovered contraband in the case could not be
deposited so far in FSL for examination. After
depositing the samples and after getting final
opinion from FSL regarding nature of
recovered narcotic substance in the case,
supplementary charge sheet shall be filed
before Hon’ble Court.”
40.
It is the case of the prosecution that the samples were drawn on
07.12.2020. The charge-sheet records that on 01.04.2021, the learned
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 17 of 27
Metropolitan Magistrate has refused to sign on the samples, that is,
certifying the same. It is not explained as to how the samples were
thereafter sent to FSL and the report was obtained. The Applicants
have also alleged that the Malkhana Register has also not been placed
on record before the learned Trial Court. The same casts a serious
doubt on the case of the prosecution.
41.
The learned counsel for the applicants has also stated that there
are material contradictions in the statement of ASI Man Mohan (PW2).
42.
Secondly, the Applicants have been in custody since
03.12.2020. The learned Trial Court in its order dated 06.06.2023,
while rejecting the application of the applicants for being released on
bail, has itself recorded that the trial is at a nascent stage and the
witnesses are yet to be examined and the evidences are yet to be
proved.
43.
In Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine
SC 352, the Supreme Court, considering the application filed by the
accused therein for being released on bail, observed as under:“12. This court has to, therefore, consider the
appellant’s claim for bail, within the
framework of the NDPS Act, especially Section
- In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union
of India, this court made certain crucial
observations, which have a bearing on the
present case while dealing with denial of bail
to those accused of offences under the NDPS
Act:
“On account of the strict language of the said
provision very few persons accused of certain
offences under the Act could secure bail. Now
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 18 of 27
to refuse bail on the one hand and to delay
trial of cases on the other is clearly unfair and
unreasonable and contrary to the spirit of
Section 36(1) of the Act, Section 309 of the
Code
and
Articles 14, 19 and 21 of
the Constitution. We are conscious of the
statutory provision finding place in Section 37
of the Act prescribing the conditions which
have to be satisfied before a person accused of
an offence under the Act can be released.
Indeed we have adverted to this section in the
earlier part of the judgment. We have also kept
in mind the interpretation placed on a similar
provision in Section 20 of the TADA Act by the
Constitution Bench in Kartar Singh v. State of
Punjab [(1994) 3 SCC 569]. Despite this
provision, we have directed as above mainly at
the call of Article 21 as the right to speedy
trial may even require in some cases quashing
of a criminal proceeding altogether, as held by
a Constitution Bench of this Court in A.R.
Antulay v. R.S. Nayak [(1992) 1 SCC 225],
release on bail, which can be taken to be
embedded in the right of speedy trial, may, in
some cases be the demand of Article 21. As we
have not felt inclined to accept the extreme
submission of quashing the proceedings and
setting free the accused whose trials have been
delayed beyond reasonable time for reasons
already alluded to, we have felt that
deprivation of the personal liberty without
ensuring speedy trial would also not be in
consonance with the right guaranteed by
Article 21. Of course, some amount of
deprivation of personal liberty cannot be
avoided in such cases; but if the period of
deprivation pending trial becomes unduly
long, the fairness assured by Article 21 would
receive a jolt. It is because of this that we have
felt that after the accused persons have
suffered imprisonment which is half of the
maximum punishment provided for the offence,
any further deprivation of personal liberty
would be violative of the fundamental right
visualised by Article 21, which has to be
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 19 of 27
telescoped with the right guaranteed by Article
14 which also promises justness, fairness and
reasonableness in procedural matters.” - When provisions of law curtail the right of
an
accused
to
secure
bail,
and
correspondingly fetter judicial discretion (like
Section 37 of the NDPS Act, in the present
case), this court has upheld them for
conflating two competing values, i.e., the right
of the accused to enjoy freedom, based on the
presumption of innocence, and societal
interest – as observed in Vaman Narain
Ghiya v. State of Rajasthan (“the concept of
bail emerges from the conflict between the
police power to restrict liberty of a man who is
alleged to have committed a crime, and
presumption of innocence in favour of the
alleged criminal….”). They are, at the same
time, upheld on the condition that the trial is
concluded expeditiously. The Constitution
Bench in Kartar Singh v. State of Punjab made
observations to this effect. In Shaheen Welfare
Association v. Union of India again, this court
expressed the same sentiment, namely that
when stringent provisions are enacted,
curtailing the provisions of bail, and
restricting judicial discretion, it is on the basis
that investigation and trials would be
concluded swiftly. The court said that
Parliamentary intervention is based on:
“a conscious decision has been taken by the
legislature to sacrifice to some extent, the
personal liberty of an undertrial accused for
the sake of protecting the community and the
nation against terrorist and disruptive
activities or other activities harmful to society,
it is all the more necessary that investigation
of such crimes is done efficiently and an
adequate number of Designated Courts are set
up to bring to book persons accused of such
serious crimes. This is the only way in which
society can be protected against harmful
activities. This would also ensure that persons
ultimately
found
innocent
are
not
unnecessarily kept in jail for long periods.”
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 20 of 27
xxxx - The conditions which courts have to be
cognizant of are that there are reasonable
grounds for believing that the accused is “not
guilty of such offence” and that he is not likely
to commit any offence while on bail. What is
meant by “not guilty” when all the evidence is
not before the court? It can only be a prima
facie determination. That places the court’s
discretion within a very narrow margin. Given
the mandate of the general law on bails
(Sections 436, 437 and 439, CrPC)
which
classify offences based on their gravity, and
instruct that certain serious crimes have to be
dealt with differently while considering bail
applications, the additional condition that the
court should be satisfied that the accused (who
is in law presumed to be innocent) is not
guilty, has to be interpreted reasonably.
Further the classification of offences under
Special Acts (NDPS Act, etc.), which apply
over and above the ordinary bail conditions
required to be assessed by courts, require that
the court records its satisfaction that the
accused might not be guilty of the offence and
that upon release, they are not likely to commit
any offence. These two conditions have the
effect of overshadowing other conditions. In
cases where bail is sought, the court assesses
the material on record such as the nature of
the offence, likelihood of the accused cooperating with the investigation, not fleeing
from justice : even in serious offences like
murder, kidnapping, rape, etc. On the other
hand, the court in these cases under such
special Acts, have to address itself principally
on two facts: likely guilt of the accused and the
likelihood of them not committing any offence
upon release. This court has generally upheld
such conditions on the ground that liberty of
such citizens have to – in cases when accused
of offences enacted under special laws – be
balanced against the public interest. - A plain and literal interpretation of the
conditions under Section 37 (i.e., that Court
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 21 of 27
should be satisfied that the accused is not
guilty and would not commit any offence)
would effectively exclude grant of bail
altogether, resulting in punitive detention and
unsanctioned preventive detention as well.
Therefore, the only manner in which such
special conditions as enacted under Section 37
can be considered within constitutional
parameters is where the court is reasonably
satisfied on a prima facie look at the material
on record (whenever the bail application is
made) that the accused is not guilty. Any other
interpretation, 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. - The standard to be considered therefore, is
one, where the court would look at the
material in a broad manner, and reasonably
see whether the accused’s guilt may be proved.
The judgments of this court have, therefore,
emphasized that the satisfaction which courts
are expected to record, i.e., that the accused
may not be guilty, is only prima facie, based
on a reasonable reading, which does not call
for meticulous examination of the materials
collected during investigation (as held
in Union of India v. Rattan Malik). 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 on bail. - 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
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 22 of 27
Parliament, the National Crime Records
Bureau had recorded that as on
31st December 2021, over 5,54,034 prisoners
were lodged in 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. - The danger of unjust imprisonment, is that
inmates are at risk of “prisonisation” a term
described by the Kerala High Court in A
Convict Prisoner v. Staten 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.” - 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
criminal”(also see Donald Clemmer’s „The
Prison 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.”
44.
In Rabi Prakash (Supra), the Supreme Court reiterated the
above principles, as under:“4. As regard to the twin conditions contained
in Section 37 of the NDPS Act, learned
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 23 of 27
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 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.”
45.
In Badsha SK. v. The State of West Bengal (order dated
13.09.2023 passed in Special Leave Petition (Crl.) 9715/2023), the
accused therein had been in custody for more than two years and four
months with the trial yet to begin. The Court therefore, released the
accused on bail.
46.
Similarly, in Man Mandal & Anr. v. The State of West Bengal
(Special Leave Petition (Crl.) 8658/2023 decided on 14.09.2023), the
accused therein had been in custody for almost two years and the
Court found that the trial is not likely to be taken up for hearing in the
immediate near future. The accused was, therefore, released on bail.
47.
In Dheeraj Kumar Shukla v. State of U.P., 2023 SCC OnLine
SC 918, the Supreme Court again released the accused therein on bail,
observing 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
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 24 of 27
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.”
48.
In Gurpreet Singh v State of NCT of Delhi, Neutral Citation
No.2024:DHC:796, this Court has considered the effect of delay in
trial, observing 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.”
49.
From the above, it is apparent that in spite of the stringent test
to be met by the accused under Section 37 of the NDPS for being
released on bail, it has been held that the same does not fetter grant of
Bail to the accused on the ground of undue delay in the completion of
trial. It has been held that prolonged incarceration generally militates
against the right to life and liberty guaranteed under Article 21 of the
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 25 of 27
Constitution of India and therefore, the conditional liberty must
override the statutory embargo under Section 37 of the NDPS Act.
50.
In the present case, therefore, the Applicants are also entitled to
be released on bail on the ground that the trial is not likely to conclude
anytime soon, while the Applicants have been in custody for a long
period.
51.
I also notice that it is not the case of the prosecution that the
Applicants are involved in any other case of similar nature or other
criminal cases. The Applicants are stated to be young boys and their
prolonged incarceration may itself result in the denial of their
fundamental right to life and liberty guaranteed under Article 21 of the
Constitution of India.
52.
Keeping in view the overall circumstances of the case,
therefore, it is directed that the Applicants, that is, Vishwajeet Singh
and Dev Kumar @ Golu be released on Bail in FIR No.564/2020
registered at Police Station: Badarpur, South-East District, New Delhi
under Sections 20/61/85 of the NDPS Act, on furnishing a personal
bond in the sum of Rs.50,000/- each, with one local surety each, of the
like amount to the satisfaction of the learned Trial Court, and further
subject to the following conditions:
i.
The Applicant(s) will not leave the country without the
prior permission of the learned Trial Court.
ii.
The Applicant(s) shall provide his permanent address to
the learned Trial Court. The Applicant(s) shall also
intimate the Court, by way of an affidavit, and to the IO
regarding any change in his residential address.
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 26 of 27
iii.
The Applicant(s) shall appear before the learned Trial
Court as and when the matter is taken up for hearing.
iv.
The Applicant(s) shall provide all/latest/fresh mobile
numbers to the IO concerned, which shall be kept by the
applicant(s) in a working condition at all times and shall
not be switched off or changed by him without prior
intimation to the learned Trial Court and the IO
concerned. The mobile location be kept on at all times.
v.
Applicant shall report before the concerned IO every 15
days.
vi.
The Applicant(s) shall not indulge in any criminal
activity and shall not communicate with or come in
contact, directly or indirectly, with any of the prosecution
witnesses. In case the Applicant(s) is found involved in
any case relating to the NDPS Act, it will be open to the
prosecution to file an appropriate application seeking
cancellation of his bail in the present case as well.
53.
Needless to state, any observation touching upon the merits of
the case is purely for the purposes of deciding the question of grant of
Bail and shall not be construed as an expression on merits of the
matter.
54.
The Bail applications are disposed of in the above terms.
55.
Copy of this judgment be sent to the Jail Superintendent for
information and necessary compliance.
NAVIN CHAWLA, J.
FEBRUARY 28, 2024/Arya/AS
Signature Not Verified
Digitally Signed
Bail
By:SUNIL
Signing Date:28.02.2024
11:33:08
Appln. 3148/2021 and Bail Appln. 2382/2023
Page 27 of 27