Delhi High Court
Vikash @ Vicky vs State (Govt. Of Nct Of Delhi) on 21 October, 2024
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.10.2024
+ BAIL APPLN. 1668/2024 & CRL.M.A. 14502/2024
VIKASH @ VICKY ..... Applicant
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Applicant : Mr. Sachin Vats and Ms. Shefali Sharma,
Advs.
For the Respondent : Mr. Ajay Vikram Singh, APP for the State
with SI Ravinder, Spl. Staff / OD.
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present application is filed seeking grant of regular bail in
FIR No. 1184/2021, dated 09.10.2021, registered at Police Station
Sultanpuri for offence under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (‘NDPS Act’).
2. Briefly stated, the FIR in the present case was registered based
on secret information that on 08.10.2021, the applicant, Vikash @
Vicky, would be arriving at E-3 Block, Sultanpuri, Delhi around 9:00
PM to supply narcotic substances/smack. Acting on this information, a
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police team was constituted and a raid was conducted at the aforesaid
location, and around the designated time, the applicant was allegedly
seen approaching the area.
3. Thereafter, notice under Section 50 of the NDPS Act was served
to the applicant informing him about his legal right to get his search
done in front of the Gazetted Officer or a Magistrate. It is alleged that
the applicant refused to be searched in the presence of the Gazetted
Officer or a Magistrate.
4. Subsequently, a search was conducted, which led to the
recovery of 313 grams of smack (heroin) from the applicant. The
contraband was found in two separate packets, one weighing 198
grams and the other 115 grams, hidden in the applicant’s possession.
Consequently, the applicant was arrested.
5. The application under Section 52A of the NDPS Act for
drawing samples was moved by the prosecution before the learned
Magistrate on 11.10.2021.
6. Upon completion of the investigation, the chargesheet in the
present case was filed for offence under Section 21 (c) of the NDPS
Act.
7. The applicant’s previous bail application was dismissed by the
learned Trial Court by order dated 11.01.2024 on the grounds of the
severity of the charges and the restrictions imposed by Section 37 of
the NDPS Act. Hence, the present application.
8. The learned counsel for the applicant submitted that the
applicant is innocent and has been falsely implicated in the present
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case. The allegations levelled by the prosecution are baseless and
without any merit. He submitted that even though the purported
recovery happened in a public place there were no independent
witnesses.
9. He submitted that even though recovery was made on
08.10.2021, the application under Section 52A of the NDPS Act was
filed belatedly on 11.10.2021 after an unexplained delay of about 3
days. He submitted that there was sufficient time for the prosecution to
tamper with the samples. He relied on the order in the case of Kashif
v. Narcotics Control Bureau : 2023 SCC OnLine Del 2881, where it
was held that the application for drawing a sample of narcotic drugs or
psychotropic substances must be made within 72 hours to the
Magistrate concerned under Section 52 A of the NDPS Act.
10. He further submitted that the samples were also belatedly sent
to the FSL Laboratory on 18.10.2021. He referred to the Standing
Order 1/88 dated 15.03.1988 to contend that it was mandatory that the
samples ought to be dispatched to the FSL Laboratory within 72 hours
of seizure.
11. He submitted that the applicant has been in custody for more
than two years and despite the passage of a significant period, the trial
is still in its initial stages. The Hon’ble Apex Court, in Mohd. Muslim
v. State (NCT of Delhi), has held that prolonged incarceration without
the conclusion of a trial is a violation of the fundamental rights
guaranteed under Article 21 of the Constitution of India.
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12. Per Contra, the learned Additional Public Prosecutor for the
State opposed the grant of bail to the applicant. He submitted that
since the recovered quantity of contraband in the present case is
commercial in nature, the bar under Section 37 of the NDPS Act is
attracted.
13. He submitted that the defences of the applicant in regard to any
procedural anomalies would be a matter of trial, and the applicant
should not be granted bail at this stage.
14. He further submitted that the applicant is a habitual offender
and is involved in a number of cases. He submitted that the applicant
has been convicted in FIR No. 384/2009.
Analysis
15. It is settled law that the Court, while considering the application
for grant of bail, has to keep certain factors in mind, such as, whether
there is a prima facie case or reasonable ground to believe that the
accused has committed the offence; circumstances which are peculiar
to the accused; likelihood of the offence being repeated; the nature and
gravity of the accusation; severity of the punishment in the event of
conviction; the danger of the accused absconding or fleeing if released
on bail; reasonable apprehension of the witnesses being threatened;
etc.
16. When the accused is charged with offence under the NDPS Act
for possession of commercial quantity of contraband, the Act further
prescribes the conditions as stipulated in Section 37 of the NDPS Act.
Section 37 of the NDPS Act reads as under:
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“37. Offences to be cognizable and non-bailable.–(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for offences
under Section 19 or Section 24 or Section 27-A and
also for offences involving commercial quantity shall
be released on bail or on his own bond unless–
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor oppose the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974), or any other law for the
time being in force, on granting of bail.”
17. The accusation in the present case is with regard to the recovery
of commercial quantity of contraband. Once the rigours of Section 37
of the NDPS Act are attracted, as provided under the Section, the
Court can grant bail only when the twin conditions stipulated in
Section 37(1)(b) of the NDPS Act are satisfied in addition to the usual
requirements for the grant of bail – (1) The court must be satisfied that
there are reasonable grounds for believing that the person is not guilty
of such offence; and (2) That the person is not likely to commit any
offence while on bail.
18. It is argued that there is a delay in sending of samples to the
FSL. In the present case, it is the case of the applicant that the
application under Section 52A of the NDPS Act was filed after a delay
of 17 days and the samples were sent for FSL after a further delay of
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16 days. It is argued that the samples should have been dispatched to
the FSL within 72 hours after seizure.
19. This Court, in the case of Sovraj v. State : 2024:DHC:5009,
adverting to a number of judgments, has concurred with the view of a
Coordinate Bench of this Court in Somdutt Singh @ Shivam :
Narcotics Control Bureau : 2023:DHC:8550, and held that
irregularity in procedure or belated compliance of the procedure under
Section 52A of the NDPS Act or Standing Order No.1/88 is not a
ground for grant of bail.
20. It is open to the applicant to press the defence of delay in
sampling procedure at the time of the trial. However, at this stage, the
applicant has failed to establish a prima facie case as to how he has
been prejudiced on account of the delayed compliance. In the opinion
of this Court, any observation as to the veracity of the recovery on
account of delay to grant bail to the applicant would be premature.
21. The learned counsel for the applicant has also raised the issue
that no independent witness was joined by the prosecution even
though the applicant was apprehended on the basis of secret
information. It is argued that no independent witnesses were
associated by the prosecution and no photography or videography was
done by the prosecution in the present case despite the applicant being
apprehended in a public place.
22. This Court in the case of Bantu v. State Govt of NCT of Delhi:
2024: DHC: 5006 has observed that while the testimony of
independent witness is sufficient to secure conviction if the sameSignature Not Verified
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inspires confidence during the trial, however, lack of independent
witnesses in certain cases can cast a doubt as to the credibility of the
prosecution’s case.
23. It was held that when the Investigating Agency had sufficient
time to prepare before the raid was conducted, not finding the public
witness and lack of photography and videography in today’s time casts
a doubt to the credibility of the evidence.
24. In the present case, no notice under Section 100 (8) of the CrPC
was given to any person on the refusal to support the Investigating
Agency during the search procedure. It is peculiar that the
Investigating Agency was unable to associate even a single public
witness in the same time, especially since the prosecution had prior
secret information and the applicant was apprehended at a public
place.
25. This Court in Bantu v. State Govt of NCT of Delhi (supra),
noted that the Hon’ble Apex Court, way back in the year 2018 in
Shafhi Mohd. v. State of H.P. (supra), after taking note of the
technological advancements, had passed certain directions. The
Hon’ble Apex Court had emphasised the role of audio-visual
technology in enhancing the efficacy and transparency in the Police
investigations.
26. This Court also noted that realising the need of change in time,
the Legislature has now passed the Bharatiya Nagarik Suraksha
Sanhita, 2023 (‘BNSS’), where the practice of photography and
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videography has now been made mandatory as part of the
investigation.
27. This Court also noted that the procedure prescribed in NCB
Handbook which has been adopted by the Delhi Police may be argued
to be not binding, however, it cannot be denied that the same has been
prescribed as the best and crucial practice for obtaining evidence in
order to avoid the allegation in regard to foul play.
28. Thus, while it is true that the effort, if any, made by the
prosecution to have the search conducted in the presence of the
independent witnesses would be tested during the course of trial and
the same may not be fatal to the case of the prosecution, however, the
benefit, at this stage, cannot be denied to the accused.
29. In the present case, the matter is at the stage of prosecution
evidence. As noted above, the applicant has been in custody since
08.10.2021. There is no likelihood of the trial being completed in the
near future.
30. It is trite law that grant of bail on account of delay in trial
cannot be said to be fettered by the embargo under Section 37 of the
NDPS Act. The Hon’ble Apex Court, in the case of Mohd. Muslim v.
State (NCT of Delhi) (supra) has observed as under:
“21….Grant of bail on ground of undue delay in trial, cannot be
said to be fettered by Section 37 of the Act, given the imperative of
Section 436A which is applicable to offences under the NDPS
Act too (ref. Satender Kumar Antil supra). Having regard to these
factors the court is of the opinion that in the facts of this case, the
appellant deserves to be enlarged 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 inSignature Not Verified
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time, the injustice wrecked on the individual is immeasurable.
Jails are overcrowded and their living conditions, more often than
not, appalling. According to the Union Home Ministry’s response
to Parliament, the National Crime Records Bureau had recorded
that as on 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 the
event of an acquittal, the loss to the accused is irreparable), and
ensure that trials – especially in cases, where special laws enact
stringent provisions, are taken up and concluded speedily.”
(emphasis supplied)
31. The Hon’ble Apex Court in Rabi Prakash v. State of Odisha :
2023 SCC OnLine SC 1109, while granting bail to the petitioner
therein held as under :
“4. As regard to the twin conditions contained in Section 37 of the
NDPS Act, learned counsel for the respondent – State has been
duly heard. Thus, the 1st condition stands complied with. So far
as the 2nd condition re: formation of opinion as to whether there
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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.”
32. The Hon’ble Apex Court in Badsha SK. v. The State of West
Bengal (order dated 13.09.2023 passed in Special Leave Petition
(Crl.) 9715/2023), granted bail to the petitioner therein who had been
in custody for more than two years with the trial yet to begin.
33. Similarly, in Man Mandal & Anr. v. The State of West Bengal
(order dated 14.09.2023 passed in Special Leave Petition (Crl.)
8656/2023 decided on 14.09.2023), the petitioner therein had been in
custody for almost two years and the Hon’ble Apex Court found that
the trial is not likely to be completed in the immediate near future. The
petitioner was, therefore, released on bail.
34. In Dheeraj Kumar Shukla v. State of U.P. : 2023 SCC OnLine
SC 918, the Hon’ble Apex Court released the petitioner therein on
bail, and observed as under:
“3. It appears that some of the occupants of the Honda City‟ Car
including Praveen Maurya @ Puneet Maurya have since been
released on regular bail. It is true that the quantity recovered from
the petitioner is commercial in nature and the provisions of Section
37 of the Act may ordinarily be attracted. However, in the absence
of criminal antecedents and the fact that the petitioner is in custody
for the last two and a half years, we are satisfied that the
conditions of Section 37 of the Act can be dispensed with at this
stage, more so when the trial is yet to commence though the
charges have been framed.”
35. From the foregoing, it is evident that despite the stringent
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requirements imposed on the accused under Section 37 of the NDPS
Act for the grant of bail, it has been established that these
requirements do not preclude the grant of bail on the grounds of undue
delay in the completion of the trial. Various courts have recognized
that prolonged incarceration undermines the right to life, liberty,
guaranteed under Article 21 of the Constitution of India, and therefore,
conditional liberty must take precedents over the statutory restrictions
under Section 37 of the NDPS Act.
36. The learned APP for the State also contended that the
antecedents of the applicant does not entitle him to any relief. Insofar
as the antecedents of the applicant are concerned, it is relevant to note
that the FIR No. 384/2009 was registered for offences under Sections
302/201/34 of the IPC and under Section 25 of the Arms Act, 1959
and not for any offence under the NDPS Act.
37. It is also settled law that criminal antecedents of an accused
cannot be a sole reason for refusal of bail [Prabhakar Tewari v. State
of U.P. : (2020) 11 SCC 648].
38. Appropriate conditions can be put to allay any apprehension of
the applicant committing another offence of a similar nature while on
bail.
39. In such circumstances, this Court is of the opinion that the
applicant has made out a prima facie case for grant of bail on the
grounds of absence of independent witnesses and prolonged delay in
the trial. The applicant is stated to be belonging to a poor strata of
society and is the sole bread earner for his family.
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40. The applicant is, therefore, directed to be released on bail (if not
in custody in any other case) on furnishing a personal bond for a sum
of ₹50,000/- with two sureties of the like amount, subject to the
satisfaction of the learned Trial Court, on the following conditions:
a. The applicant shall not directly or indirectly make any
inducement, threat, or promise to any person acquainted
with the facts of the case or tamper with the evidence of the
case, in any manner whatsoever;
b. The applicant shall under no circumstance leave the
boundaries of Delhi without informing the concerned SHO;
c. The applicant shall appear before the learned Trial Court as
and when directed;
d. The applicant shall provide the details of his permanent
address where he would be residing after his release to the
learned Trial Court and intimate the Court, by way of an
affidavit, as well as to the IO about any change in his
residential address;
e. The applicant shall, upon his release, give his mobile
number to the concerned IO/SHO and shall keep his mobile
phone switched on at all times.
41. In the event of there being any FIR/DD entry / complaint
lodged against the applicant, it would be open to the State to seek
redressal by filing an application seeking cancellation of bail.
42. It is clarified that any observations made in the present order are
for the purpose of deciding the present bail application and should not
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influence the outcome of the trial and also not be taken as an
expression of opinion on the merits of the case.
43. The bail application is allowed in the aforementioned terms.
Pending application is also disposed of.
AMIT MAHAJAN, J
OCTOBER 21, 2024
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