Delhi High Court
Sanjay vs The State Nct Of Delhi on 22 January, 2025
Author: Jasmeet Singh
Bench: Jasmeet Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 19.12.2024
Judgment pronounced on: 22 .01.2025
+ BAIL APPLN. 3710/2023
SANJAY .....Petitioner
Through: Ms Sushma Sharma, Mr Girish
Kumar Sharma, Mr Dhruv Kumar Sharma,
Ms Aayushi Gaur, Ms Stuti Aggarwal and
Mr Sahil, Advs.
versus
THE STATE NCT OF DELHI .....Respondent
Through: Mr Aman Usman, APP for State
with SI Satnarayan, ANS/SED
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
: JASMEET SINGH, J
1. This is a petition filed under section 439 of Code of Criminal
Procedure (“CrPC”) seeking regular bail in FIR bearing No. 788/22
dated 06.11.2022 under section 21 of Narcotic Drugs and
Psychotropic Substances Act, 1985 (“NDPS Act”) PS Okhla
Industrial Area, South-East, New Delhi.
FACTUAL MATRIX
2. As per the prosecution, a secret information was received on
06.11.2022 at around 08:00 AM that one person i.e. the petitioner
herein would come to Okhla Industrial Area at around 12:00 PM to
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supply smack/heroine, if a raid is conducted then he can be
apprehended with the contraband. After the verifying the secret
information, SI passed the information to Inspector Rajinder Singh
IUC Anti-Narcotic Squad and ACP/Operation Sh Satpal Panwar over
telephone. On the directions of the ACP, the SI recorded the said
information in DD No. 3 at 9:20 AM. A raiding team was constituted,
and it took position near Okhla Phase-2 at around 10:45 AM. The SI
introduced the raiding team to 4-5 passers-by requesting them to join
as independent witnesses, but all of them denied citing justified
compulsion.
3. It is further stated that at around 11:35 AM, a person wearing grey
colored jeans and light pink colored t-shirt (identified by the secret
informer) was apprehended and upon strict interrogation the name of
the person apprehended was found to be Sanjay s/o Kailash r/o jhuggi
no. D-240, Block A, J.J Camp, Okhla Industrial Area, Phase – 2,
Delhi, Aged – 24 years (the petitioner herein). The passers-by who
gathered there were informed about the information and asked to join
the investigation, refused to join the same by citing their own justified
compulsions. The SI then informed Inspector Rajender Singh over
phone about the apprehended person, who spoke to ACP/OPS and
ordered to take appropriate action. Thereafter, the petitioner was
apprised about the secret information and was told about his personal
search.
4. Accordingly, a notice under section 50 of NDPS Act was prepared and
read out and explained to the petitioner and was served upon him. On
a cursory search of the petitioner, a red colored carry bag was
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recovered from the right pocket of his jeans in which a transparent
polythene was found. After opening and checking the same with the
help of field-testing kit, smack/heroine was recovered. The weight of
the recovered smack/heroine with the said polythene was found to be
270 grams which is above the commercial quantity i.e. 250 grams and
thereafter, the said polythene along with the contraband was seized.
Hence the FIR.
5. The petitioner was arrested on 06.11.2022.
6. After completion of the investigation, the chargesheet was filed
against the petitioner under section 21 of NDPS Act before the
concerned Court.
7. The petitioner filed the bail application before the learned Trial Court
which was dismissed vide order dated 17.10.2023. Hence the present
petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER
8. Learned counsel for the petitioner states that in the present case, there
is non-compliance of Section 52A of NDPS Act as the inventory of
the contraband was not prepared and neither the same was produced
before the Ld. MM while conducting the proceedings under Section
52A of NDPS Act. Therefore, there is no inventorisation/certification
signed by the Ld. MM. Hence, there is no proof that the contraband
seized from the petitioner was the same as was produced before the
Ld. MM for taking the samples. Reliance is placed on Mohit Bhati v.
State of NCT of Delhi, Bail Appln No. 1853/2024 decided on
01/08/2024 to urge that bail should be granted due to non
inventorisation of the contraband.
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9. It is further submitted that there is non compliance of section 50 of
NDPS Act as in the notice, it is mentioned as ‘any’ magistrate instead
of ‘nearest’ magistrate. Reliance is placed on Mohd. Jabir v. State
(NCT of Delhi), 2023 SCC OnLine Del 1827 and Aabid Khan v.
State (NCT of Delhi), 2023 SCC OnLine Del 7668.
10. Learned counsel for the petitioner further submits that no videography
or photography was done at the spot and no public witness joined the
proceedings. Reliance is placed on Sukhvinder Singh v. State (NCT
of Delhi), 2024 SCC OnLine Del 4733 and Madhuri Chauhan v.
State (NCT of Delhi), 2024 SCC OnLine Del 4735.
11. Lastly, it is submitted that there is delay in trial as not even a single
witness has been examined till yet and the trial is not likely to be
concluded in near future. Further, the petitioner has undergone almost
2 years of incarceration.
SUBMISSIONS ON BEHALF OF STATE
12. It is argued by the learned APP that NDPS Act is a special statute with
an overriding effect over CrPC. Sections 41, 42 and 43 of NDPS Act
provides for warrants, search, arrest and seizure. These have an
overriding effect over corresponding sections of CrPC. Section 51 of
NDPS Act clarifies that the provisions of CrPC apply only to the
extent they are not inconsistent with the NDPS Act. Therefore, the
provisions of the NDPS Act take precedence over the general
provisions of the CrPC, particularly concerning the procedure for
search, seizure, and arrest.
13. It is contended by the learned APP that the provisions of Section 50 of
NDPS Act are mandatory in nature, however, there is an exception i.e.
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Section 50(5), which allows a duly authorized officer to conduct a
search without taking the person to be searched to a Gazetted officer
or Magistrate if it is not feasible to do so. Section 50(5) of NDPS Act
must be read in harmony with the other sub-sections of Section 50.
Section 100 CrPC applies in the event the investigating officer is
unable to take the accused to a Gazetted officer or Magistrates due to
circumstances. It is not mandated that the provisions of Section 100
CrPC, would also apply upon refusal by the accused to exercise the
option provided under Section 50(1) of the NDPS Act. The provisions
of Section 100(4) are not mandatory in nature and even if there is non-
compliance, the recovery may still be valid if it constitutes an offense
under the NDPS Act.
14. He further states that non-joining of independent witnesses despite the
best efforts by the IO, does not automatically vitiate the proceedings.
The recovery effected in the presence of police officials cannot be
doubted and the recovery is a subject matter of Trial. Reliance is
placed on Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197,
Jagwinder Singh v. State of Punjab, Crl. Appl. No. 2027/2012 dated
02.11.2023 and Ram Swaroop v. State (Govt. of NCT of Delhi),
(2013) 14 SCC 235.
15. He further states that the police in performing their official duties, act
under the presumption of regularity. There is a presumption in favour
the police in discharge of their official duties unless contrary evidence
is produced. Reliance is placed on Surinder Kumar v. State of
Punjab, (2020) 2 SCC 563.
16. The argument pertaining failure of the IO to record the raid via
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photography or videography is impractical. Practical difficulties
during investigation often limit the IO to record every raid. Reliance is
placed on Chidi Berr Nwayoga v. State, 2022 SCC OnLine Del 2558.
17. Lastly, it is stated that delay in trial cannot be attributed to
prosecution. It is contended by the learned APP that the delays in the
trial are due to presiding officer being on leave. Reliance is placed on
Mohd Akhtar v. State (NCT of Delhi), 2022 SCC OnLine Del 3210.
ANALYSIS AND FINDINGS
18. I have heard learned counsels for the parties and perused the material
available on record.
19. Learned counsel for the petitioner has sought bail on the following
grounds:-
A. Non-compliance of Section 52A;
B. Non compliance of Section 50;
C. Non joinder of independent witnesses;
D. No videography and photography of the seizure; and
E. Delay in trial.
Non compliance of Section 52A
20. Sub section (2) (3) and (4) of Section 52A of NDPS Act read as
under:-
[52A. Disposal of seized narcotic drugs and psychotropic
substances.–
(1) ……
(2) Where any [narcotic drugs, psychotropic substances,
controlled substances or conveyances] has been seized and
forwarded to the officer-in-charge of the nearest policeDigitally Signed BAIL APPLN. 3710/2023 Page 6 of 31
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station or to the officer empowered under section 53, the
officer referred to in sub-section (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
certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the IndianDigitally Signed BAIL APPLN. 3710/2023 Page 7 of 31
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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 innventory, 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.]
21. On perusal, whenever any narcotic drugs, psychotropic substances,
controlled substances or conveyances have been seized and thereafter
forwarded to the police or to the officer empowered under section 53,
the officer referred to in subsection (1) ‘shall’ prepare an inventory
containing all the details such as quality, quantity, mode of packing,
numbering and identifying marks etc. followed by an application to
any Magistrate for certifying the correctness of the inventory and to
allow to draw samples from such drugs or substance in the presence of
the Magistrate and to certify the correctness of the list of samples so
drawn. Sub section (4) further states that the inventory, the
photographs and list of samples drawn and certified by the Magistrate
shall be treated as primary evidence in respect of such offences.
22. It is apposite to refer to the judgment of Yusuf v. State, 2023 SCC
OnLine SC 1328 wherein the Hon’ble Supreme Court observed as
under:-
“13. Notwithstanding the defence set up from the side of the
respondent in the instant case, no evidence has been
brought on record to the effect that the procedure
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52A of the NDPS Act was followed while making the seizure
and drawing sample such as preparing the inventory and
getting it certified by the Magistrate. No evidence has also
been brought on record that the samples were drawn in the
presence of the Magistrate and the list of the samples so
drawn were certified by the Magistrate. The mere fact that
the samples were drawn in the presence of a gazetted officer
is not sufficient compliance of the mandate of sub-section
(2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples
from the seized substance were drawn by the police in the
presence of the gazetted officer and not in the presence of
the Magistrate. There is no material on record to prove that
the Magistrate had certified the inventory of the substance
seized or of the list of samples so drawn.
15. In Mohanlal‟s case, the apex court while dealing with
Section 52A of the NDPS Act clearly laid down that it is
manifest from the said provision that upon seizure of the
contraband, it has to be forwarded either to the officer-in-
charge of the nearest police station or to the officer
empowered under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make an
application to the Magistrate for the purposes of getting its
correctness certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and the list
thereof on being certified alone would constitute primary
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evidence for the purposes of the trial.
16. In the absence of any material on record to establish
that the samples of the seized contraband were drawn in the
presence of the Magistrate and that the inventory of the
seized contraband was duly certified by the Magistrate, it is
apparent that the said seized contraband and the samples
drawn therefrom would not be a valid piece of primary
evidence in the trial. Once there is no primary evidence
available, the trial as a whole stands vitiated.”
(Emphasis added)
23. The Hon’ble Supreme Court was of the view that in the absence of
inventorisation of the seized contraband, the said contraband will not
be treated as a valid piece of primary evidence in the trial and hence,
the trial will be vitiated.
24. In the present case, on perusing the chargesheet, there is no mention of
the inventory so prepared of the seized contraband. Moreover, during
the sampling process before the Ld. MM, the order dated 09.11.2022
does not reflect that the inventory, if so was prepared, was certified by
the Ld. MM. The operative portion of the order dated 09.11.2022 read
as under:-
“By way of this application, the IO seeks permission for
drawing the sample of case property recovered during the
investigation. MHCM has produced the case property i.e.
one plastic transparent box which is mark A containing the
contra band duly sealed with the seal H.S and A.K. The
details of case, signatures of first IO as well as witnesses,Digitally Signed BAIL APPLN. 3710/2023 Page 10 of 31
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accused persons and SHO, OIA are also there on the
Doctor tape covering the plastic box. At the stage, SI Atul
Yadav has produced before me a photographer HC Binod,
No. 1376/SE and he has taken the photographs of sealed
Box A.
At this stage, SI Atul Yadav is directed to upon transparent
plastic box A by breaking the seal and to take out samples
from the said transparent plastic box.
At this stage, IO/SI Atul Yadav has produced before me a
weighing machine and same is calibrated to zero (0) value.
SI Atul Yadav has taken out the contraband from the
transparent plastic box mark A and putted on the weighing
machine and its weight is noted to be 270 gram.
Out of the total contraband produced before the
undersigned, IO/SI Atul Yadav has taken two samples of 10
grams each in transparent poly bags and put the same in
two transparent plastic boxes, covered with Doctor tape
which are now marked as S1and S2. The weight of the
plastic boxes in which the sample is stored is 20
grams……..”
25. The above order does not mention that any inventory was prepared in
accordance with Section 52A (2) of NDPS Act.
26. Perusal of the order 09.11.2022 reproduced above, I am of the view
that the inventory of the alleged seized contraband was not prepared
and hence the question of certifying the correctness of the inventory
before the Magistrate did not arise. The Ld. MM, in the present case,
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has only certified the samples drawn from the alleged seized
contraband but the inventory is missing.
27. A coordinate bench of this Court has also endorsed the same view in,
inter alia, Mohit Bhati (supra) and Yashmin vs. State, Bail Appln
No. 886/2024 decided on 27/08/2024 and has released the petitioner
therein on bail.
28. At this juncture, it is noteworthy to mention the recent judgment
passed by the Hon’ble Supreme Court i.e. Narcotics Control Bureau
v. Kashif, 2024 SCC OnLine SC 3848 wherein the law with regard to
section 52A has been discussed and observed as under:-
“39. The upshot of the above discussion may be summarized
as under:
(i) The provisions of NDPS Act are required to be
interpreted keeping in mind the scheme, object and purpose
of the Act; as also the impact on the society as a whole. It
has to be interpreted literally and not liberally, which may
ultimately frustrate the object, purpose and Preamble of the
Act.
(ii) While considering the application for bail, the Court
must bear in mind the provisions of Section 37 of the NDPS
Act which are mandatory in nature. Recording of findings
as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under
the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the
procedure for disposal of seized Narcotic Drugs andDigitally Signed BAIL APPLN. 3710/2023 Page 12 of 31
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Psychotropic Substances, was to ensure the early disposal
of the seized contraband drugs and substances. It was
inserted in 1989 as one of the measures to implement and to
give effect to the International Conventions on the Narcotic
drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure
as contemplated in sub-section (1) thereof, and any lapse or
delayed compliance thereof would be merely a procedural
irregularity which would neither entitle the accused to be
released on bail nor would vitiate the trial on that ground
alone.
(v) Any procedural irregularity or illegality found to have
been committed in conducting the search and seizure during
the course of investigation or thereafter, would by itself not
make the entire evidence collected during the course of
investigation, inadmissible. The Court would have to
consider all the circumstances and find out whether any
serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by
itself would neither vitiate the trial nor would entitle the
accused to be released on bail. The Court will have to
consider other circumstances and the other primary
evidence collected during the course of investigation, as
also the statutory presumption permissible under Section 54
of the NDPS Act.”
(Emphasis added)
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29. The Hon’ble Supreme Court in Yusuf (supra) has held that the non
compliance of section 52A of NDPS Act would vitiate the trial,
however, recently, the Hon’ble Supreme Court in Kashif (supra)
while distinguishing Yusuf (Supra) observed that any procedural
lapse or delayed compliance of Section 52A(2) of NDPS Act would
be a procedural irregularity which will not vitiate the trial and entitle
the accused to be released on bail ‘on this ground alone’. The Court
has to consider all the circumstances and other primary evidence and
come to a finding as to whether serious prejudice has been caused to
the accused.
30. Similar view has been reiterated again by the Hon’ble Supreme Court
in Bharat Aambale v. The State of Chhattisgarh, 2025 INSC 78
wherein it is observed as under:-
“50.We summarize our final conclusion as under: –
……………. ……………… …………….
(V) Mere non-compliance of the procedure under Section
52A or the Standing Order(s) / Rules thereunder will not be
fatal to the trial unless there are discrepancies in the
physical evidence rendering the prosecution‟s case doubtful,
which may not have been there had such compliance been
done. Courts should take a holistic and cumulative view of
the discrepancies that may exist in the evidence adduced by
the prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
……………. ……………… …………….
(VII) Non-compliance or delayed compliance of the saidDigitally Signed BAIL APPLN. 3710/2023 Page 14 of 31
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provision or rules thereunder may lead the court to drawing
an adverse inference against the prosecution, however no
hard and fast rule can be laid down as to when such
inference may be drawn, and it would all depend on the
peculiar facts and circumstances of each case.”
31. I am of the view that in the present case, there is non compliance of
section 52A as inventory is not prepared which is a procedural
irregularity but this ground alone will not entitle the petitioner to grant
bail. Having said that, the other submissions of the learned counsel for
the petitioner are being dealt as under:-
Non compliance of section 50
32. Learned counsel for the petitioner has further contended that the
notice given under section 50 of NDPS Act does not comply with the
requisite condition as mentioned therein, the word ‘any’ Magistrate
has been mentioned instead of ‘nearest’ Magistrate.
33. The said defence is no longer available to the accused as the Hon’ble
Supreme Court, recently, in State of NCT of Delhi v. Mohd. Jabir,
Criminal Appeal No. 4931 of 2024 has observed as under:-
“…….The provision vide sub-section (1) mandates that
when an officer duly authorized under Section 42 is about to
search a person under the provisions of Sections 41, 42 or
43, he shall, if the person about to be searched so requires,
take the person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in
Section 42 or to the nearest Magistrate.
It is obvious that the intent behind the provision is to ensureDigitally Signed BAIL APPLN. 3710/2023 Page 15 of 31
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that the person about to be searched is made aware of the
option to be taken before a third person other than the one
who is conducting the search. Use of the expression
“nearest” refers to the convenience as the suspect is to be
searched. Delay should be avoided, as is reflected from the
use of the word “unnecessary delay” and the exception
carved in sub-section (5) to Section 50 of the NDPS Act.
Nothing more is articulated and meant by the words used,
or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning
given by the High Court in the impugned judgment, which
states that use of the word „any‟ does not satisfy the
mandate of the „nearest‟ Gazetted Officer and, hence, the
respondent, Mohd. Jabir, is entitled to bail. The option
given to the respondent, Mohd. Jabir, about to be searched,
with reference to a Gazetted Officer or a Magistrate, does
not refer to the authorized person in the raiding team itself.
It is pertinent to mention that the respondent, Mohd. Jabir,
did not exercise the option.
The aforesaid ratio is not in conflict with the decision of this
Court in Arif Khan alias Agha Khan v. State of
Uttarakhand, wherein this Court has observed that
requirements of Section 50 of the NDPS Act are mandatory
and must be strictly complied with. Section 50 casts an
obligation on the police officer to apprise the person
intended to be searched that under Section 50, he isDigitally Signed BAIL APPLN. 3710/2023 Page 16 of 31
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required to be searched only before a Gazetted Officer or a
Magistrate. The requirement is that the authorized officer
must make the suspect aware of the existence of his right to
be searched before a Gazetted Officer or a Magistrate……”
(Emphasis added)
34. The Hon’ble Supreme Court has held that the word ‘any’ instead of
‘nearest’ does not negate the effect and intent of notice given under
section 50 of NDPS Act. Further, the accused or to whom the notice is
served, shall be informed about the right that he is to be searched only
before a nearest Gazetted Officer or a Magistrate for the purpose of
search. The said requirement is an obligation on the police officer to
inform the accused for the compliance of section 50 of NDPS Act.
35. In this backdrop, this Court has to be satisfied whether the petitioner
was informed about his right.
36. In the present case, notice given to the petitioner under section 50 of
NDPS Act reads as under:-
“…..You are informed through this notice that we have
information that you deal in SMACK / HEROIN supply and
at this time also illegitimate SMACK / HEROIN may be
recovered from your posession, therefore your search
should be carried out by the police officer. Before you being
searched it is your legal right that you can get yourself
searched in front of any Gazetted Officer or Magistrate who
can be called on the spot and before your search, you can
also search the members of the Police Personnel.
……………. ………………… ………………
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I sanjay studied till 5th class and I am well known about my
legal rights. I do not want to get searched in front of any
gazzetted officer or magistrate and also do not want to
search any police officials. You can search me………”
37. On perusal, the aforesaid content of the notice clearly shows that the
petitioner was duly informed about his right to get searched in the
presence of a Gazetted Officer or Magistrate. The petitioner did not
exercise that option. The duty cast upon the officer has been duly
discharged by the said officer. The petitioner was duly informed about
his right and the petitioner chose not to exercise the same. Therefore, I
am of the view that the requisite conditions of section 50 of NDPS Act
have been complied with.
Non joinder of independent witness
38. Further, as argued by the learned counsel for the petitioner, there has
been no public witness who has joined the recovery proceedings. It is
important to note that the recovery, in the present case, was done at
around 11:35 AM near Okhla Phase-2 meaning thereby in broad
daylight at a public place.
39. It is stated by the learned APP that section 100 of CrPC comes into the
picture, when the officer is of the view that it is not feasible to take the
accused to the nearest Gazetted Officer or Magistrate due to
circumstances. Further, even if there is non compliance of section 100
(4) of CrPC, it will still be an offence under NDPS Act. The absence
of independent witness may raise concerns about the credibility of an
evidence but such irregularity will not vitiate the trial.
40. No doubt, section 50(5) of NDPS Act permits the officer to do away
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with taking the accused to the nearest Gazetted Officer or Magistrate
provided that the officer is of the view that taking the accused to the
nearest Gazetted Officer or Magistrate would result in possibility of
the accused parting with the contraband. If the officer is of the said
view, then the officer has to conduct search under the provisions of
section 100 of CrPC. For the sake of perusal, section 50 (5) of NDPS
Act reads as under:-
“Section 50. Conditions under which search of persons
shall be conducted.-
…………..
[(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person to
be searched to the nearest Gazetted Officer or Magistrate
without the possibility of the person to be searched parting
with possession of any narcotic drug or psychotropic
substance, or controlled substance or article or document,
he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the
person as provided under section100 of the Code of
Criminal Procedure, 1973 (2 of 1974).”
41. Section 100 (4) of CrPC states that whenever the officer or any other
authorized persons is conducting search, shall call upon two or three
independent and respectable inhabitants from the locality where the
search is conducted and such search be conducted in their presence.
The said section reads as under:-
“(4) Before making a search under this Chapter, the officer
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or other person about to make it shall call upon two or more
independent and respectable inhabitants of the locality in
which the place to be searched is situate or of any other
locality if no such inhabitant of the said locality is available
or is willing to be a witness to the search, to attend and
witness the search and may issue an order in writing to
them or any of them so to do.”
42. The Hon’ble Supreme Court in State of Punjab v. Balbir Singh,
(1994) 3 SCC 299 observed that the violation of inter alia, section 100
does not vitiate the case of the prosecution. Further, if there is such
violation, what the courts have to see is whether any prejudice was
caused to the accused and in appreciating the evidence and other
relevant factors, the courts should bear in mind that there was such a
violation and from that point of view evaluate the evidence on record.
In addition, when such provisions have not been complied with, it
may, however, affect the weight of the evidence in support of the
search or may furnish a reason for disbelieving the evidence produced
by the prosecution unless the prosecution properly explains such
circumstance which made it impossible for it to comply with these
provisions. Para 7 of the said judgment is extracted below:-
“7. It therefore emerges that non-compliance of these
provisions i.e. Sections 100 and 165 CrPC would amount to
an irregularity and the effect of the same on the main case
depends upon the facts and circumstances of each case. Of
course, in such a situation, the court has to consider
whether any prejudice has been caused to the accused andDigitally Signed BAIL APPLN. 3710/2023 Page 20 of 31
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also examine the evidence in respect of search in the light of
the fact that these provisions have not been compiled with
and further consider whether the weight of evidence is in
any manner affected because of the non-compliance. It is
well settled that the testimony of a witness is not to be
doubted or discarded merely on the ground that he happens
to be an official but as a rule of caution and depending upon
the circumstances of the case, the courts look for
independent corroboration. This again depends on question
whether the official has deliberately failed to comply with
these provisions or failure was due to lack of time and
opportunity to associate some independent witnesses with
the search and strictly comply with these provisions………”
43. The Hon’ble Supreme Court in Kishan Chand v. State of Haryana,
(2013) 2 SCC 502 has observed that lack of independent witness in
the recovery or in the entire investigation process casts a shadow of
doubt over the case of the prosecution.
44. A Coordinate Bench of this Court in Krishan v. State (NCT of Delhi),
2023 SCC OnLine Del 8646 has observed that absence of independent
witnesses is a relevant factor for granting bail to an accused person,
specially, when the recovery is effectuated from public space in broad
daylight.
45. In the present case, a secret information was received at around 9 AM
that one person at 12 PM is going to supply smack/heroin. Upon this,
a raiding team was constituted and reached the spot at 10:20 AM. The
petitioner was apprehended at around 11:35 AM. It appears that the
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raiding team successfully reached the spot before the given time when
the suspected person was to come. There was ample time for the
prosecution to secure independent witness/es from such crowded place
as in the present case, the recovery was made from Okhla Phase-2
during broad daylight. It is mentioned in the chargesheet that 4-5
passers-by were asked to join but they refused to join by citing their
own justified compulsion.
46. As noted above, absence of independent witness may not vitiate the
trial, however, it is open for the prosecution to explain the said
absence. With regard to whether prejudice has been caused to the
petitioner herein, prima facie, I am of the view that, while considering
the bail application, benefit must be extended to the petitioner as in
the chargesheet, only a bald averment is made that 4-5 passers-by
were asked to join but they refused citing their justified compulsions.
The said refusal must be recorded in writing and signed by such
person which is not done in the present case. In addition, the
chargesheet is also devoid of any averment that if any notice under
section 100 (8) of CrPC was given to the passers-by and also no
efforts were made to note down the details of such passers-by.
No photography and videography
47. Learned counsel for the petitioner has also stated that the police
official did not arrange any videography and photography of the
recovery of the contraband from the petitioner.
48. The Hon’ble Supreme Court in Shafhi Mohd. v. State of H.P., (2018)
5 SCC 311 has expressed the need for videography and photography
during the investigation. Relevant para from the said judgment is
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extracted below:-
“10. Thus, we are of the considered view that
notwithstanding the fact that as of now investigating
agencies in India are not fully equipped and prepared for
the use of videography, the time is ripe that steps are taken
to introduce videography in investigation, particularly for
crime scene as desirable and acceptable best practice as
suggested by the Committee of the MHA to strengthen the
Rule of Law. We approve the Centrally Driven Plan of
Action prepared by the Committee and the timeline as
mentioned above. Let the consequential steps for
implementation thereof be taken at the earliest.”
49. This Court in Ram Prakash v. State, 2014 SCC OnLine Del 6936
acquitted the accused person on the ground of lack of videography and
observed that the case of the prosecution is not proved beyond
reasonable doubt and granted benefit of doubt to the accused.
Relevant para is extracted below:-
“22. ………. The Court can only observe that with so many
technological advances where satellite imagery to the
smallest degree of precision of any location in the world is
available, the Delhi police can no longer be excused for not
improving its methods of gathering and presenting evidence.
Considering that the raid was going to take place in a busy
place like the Old Delhi Railway Station parking lot, and in
broad daylight, it should have been possible for the police
to arrange for a videograph of the place or perhaps of theDigitally Signed BAIL APPLN. 3710/2023 Page 23 of 31
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raid itself, if not photographs.
23. Also clearly there are CCTV cameras all over the place
outside the Old Delhi Railway Station including its parking
lot. There was no effort made to collect the CCTV footage of
the relevant time. Not only would it have showed how the
Appellant reached the spot with the three bags but also it
could have been placed on record to show the raid placed
on record to shown the raid as it took place.”
50. A coordinate bench of this Court in Bantu v. State (NCT of Delhi),
2024 SCC OnLine Del 4671 has discussed the said contention in
detail and has observed as under:-
“81. Realizing the need of changing time, the legislature
has now passed the Bharatiya Nagarik Suraksha Sanhita
(„BNSS‟). The practice of photography and videography has
now been made mandatory. Even though it is contended
that, at the relevant time, the same was not mandatory, it
cannot be denied that the Courts have, time and again,
discarded the prosecution’s story and had emphasized on
the importance of independent witnesses and additional
evidence in the form of audiography and videography when
the same can easily be obtained due to advancement of
technology.
82. This legislative enhancement is designed to ensure a
more transparent and accountable approach in
investigation. BNSS, with its comprehensive emphasis on
technological integration, heralds a transformative era inDigitally Signed BAIL APPLN. 3710/2023 Page 24 of 31
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criminal justice, promoting a system that is not only
transparent and accountable but also fundamentally aligned
with the principles of fairness and justice.
83. Photography and videography are universally accepted
as the best practices for better erudition and appreciation of
the evidence. The same ensures that the prosecution is able
to better document the recovery during the investigation.
BNSS stipulates that the proceedings of search and seizure
shall be recorded through any audio – video means
preferably through a mobile phone. As noted above, these
days mobile phones are handy with almost everyone
especially, in a metropolitan city like Delhi.”
51. In NDPS cases, the recovery of the contraband is the fulcrum of the
matter. The said recovery becomes a crucial piece of evidence, as it
directly links the accused with the crime. Further, the quantity of the
contraband is another crucial factor as it plays a significant role in
determining the severity of the sentence as the legislation provides
specific punishments based on the quantity of the contraband.
Therefore, the procedure as prescribed under the NDPS Act must be
adhered to when such recovery of the contraband is made. Though
lack of photography and videography by itself does not vitiate the trial
but the same along with the absence of independent witnesses casts a
shadow of doubt on the prosecution’s case unless the same is proved
by cogent materials.
52. In the present case, the argument of learned counsel for the petitioner
that the no videography and photography is done is belied from the
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material placed on record and more particularly from the chargesheet
where is categorically mentioned that HC Binod has done the
photography of the seizure process. Hence, I am of the view that the
same will be the subject matter of trial.
Delay in Trial
53. Lastly, learned counsel for the petitioner has argued that there is delay
in trial as none of the witnesses out of total 15 witnesses have been
examined yet.
54. To grant bail in NDPS Act, the accused person has to cross the hurdle
of twin conditions mentioned in section 37 of NDPS Act. Time and
again, the Hon’ble Supreme Court in catena of judgments has laid
down that the twin conditions can be relaxed provided the accused
person has undergone substantial period of incarceration and the trial
is unlikely to end in near future. In addition, the accused person has a
right to speedy trial which flows from Article 21 of Constitution of
India.
55. In Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC
352, the Hon’ble Supreme Court observed as under:-
“13. 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 theDigitally Signed BAIL APPLN. 3710/2023 Page 26 of 31
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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……
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 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 onDigitally Signed BAIL APPLN. 3710/2023 Page 27 of 31
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31st December 2021, over 5,54,034 prisoners were lodged
in jails against total capacity of 4,25,069 lakhs in the
country20. 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 Court in A Convict Prisoner v. State21 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
criminal”22 (also see Donald Clemmer’s „The Prison
Community‟ published in 194023). 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
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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.”
56. The Hon’ble Supreme Court in Man Mandal v. State of W.B., 2023
SCC OnLine SC 1868 granted bail to the petitioners on the ground
that they had undergone almost 2 years and the trial is not likely to be
concluded in near future. Also, in Dheeraj Kumar Shukla v. State of
U.P., 2023 SCC OnLine SC 918, the Hon’ble Supreme Court
dispensed the rigors of section 37 of NDPS Act and granted bail to the
petitioner therein. Relevant para of the said judgment is extracted
below:-
“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.”
57. The Hon’ble Supreme Court in Badsha Sk. v. State of W.B., 2023
SCC OnLine SC 1867 has granted bail to the petitioner, who had been
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in custody for more than 2 years with trial yet to begin.
58. In the present case, the accused has been in custody for almost 2
years. As per the chargesheet, there are total 15 witnesses cited and as
of now, not a single witness has been examined. I am of the view that
the restrictions given under section 37 of NDPS Act cannot take
precedence over the petitioner’s rights guaranteed under Article 21 of
Constitution of India. Hence, Article 21 of Constitution will prevail
over the restrictions given under section 37 of NDPS Act as the
petitioner has undergone almost 2 years of custody and the trial is not
likely to conclude in near future.
CONCLUSION
59. For the reasons noted above, I am of the view, prima facie, that the
petitioner has made out a case for grant of bail on the ground of non
joinder of independent witnesses and most importantly, delay in trial
causing fetters in speedy trial being a right guaranteed under Article
21 of the Constitution.
60. I may also note that there is another FIR No. 246/2022 under section
27, 61 and 85 of NDPS Act, however, the petitioner has not been
arrested in the said FIR.
61. For the foregoing reasons, the petitioner herein is released on bail
subject to the following terms and conditions:-
a) The petitioner shall furnish a personal bond in the sum of
Rs 20,000 (Rupees twenty thousand only) each with 1
surety in the like amount, to the satisfaction of the
concerned trial court;
b) The petitioner shall not leave the country without the
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permission of the concerned court and if the petitioner has a
passport, he shall surrender the same to the concerned trial
court;
c) The petitioner shall furnish to the IO concerned the cell
phone number on which the petitioner may be contacted at
any time and shall ensure that the number is kept active and
switched on at all times;
d) The petitioner will furnish his permanent address to the
concerned IO and in case he changes his address, he will
inform the IO concerned;
e) The petitioner shall not indulge in any act or omission
that is unlawful, illegal or that would prejudice the
proceedings in pending cases, if any;
f) The petitioner shall appear before the concerned Court on
every date of hearing unless exempted;
g) The petitioner shall not communicate with, or come into
contact with any of the prosecution witnesses, or tamper
with the evidence of the case.
62.All the observations made herein above are only for the purpose of
deciding the present petition and will have no effect on the merits of
the case pending.
63.The petition along with pending applications, if any, are disposed of.
JASMEET SINGH, J
JANUARY 22, 2024/(MSQ)
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