Full Text
HIGH COURT OF DELHI
JUDGMENT
SOVRAJ ..... Applicant
For the Applicant : Mr. Aditya Aggarwal and Mr. Naveen Panwar, Advs.
For the Respondent : Mr. Utkarsh, APP for the State with SI
Mohd. Kafeel, PS K.M. Pur.
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking release on bail in relation to the case FIR No.78/2021 dated 16.02.2021, registered at Police Station K.M. Pur for offence under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS’). Chargesheet has been filed for the offence under Section 20 of the NDPS Act against the applicant.
BRIEF FACTS
2. The case of the prosecution is that, on 15.02.2021, secret information was received that a Nepali national, who lives in Kotla, would go come at Sewa Nagar, Sabji Mandi to supply a huge amount of Charas to someone. It is alleged that at about 11 PM, a boy carrying a shoulder bag came to the spot and was apprehended by the raiding team. The said boy disclosed his name to be Barun Kumar Bantawa (co-accused). On searching his bag, 23 brick type pieces in transparent polythene were found. It is alleged that 11 Kg 592 gram of Charas was recovered.
3. The co-accused disclosed that he along with his friend, that is, the applicant, used to bring Charas from Nepal to supply the same in Delhi. On the basis of the disclosure of the co-accused, the applicant was apprehended on 16.02.2021. A notice under Section 50 of the NDPS Act was served upon the applicant. It is alleged that the applicant disclosed that he had Charas in his bag. On searching the bag of the applicant, 10 bricks total weighing 4.396 kg of Charas were found. It is alleged that the applicant disclosed that he along with the co-accused had brought 16 kg of Charas on 15.02.2021 from Nepal.
4. Upon completion of the investigation, the chargesheet in the present case was filed for offences against the applicant and the coaccused, for offence under Section 20 of the NDPS Act.
5. The alleged recovery is of commercial quantity of contraband.
6. The learned Trial Court dismissed the regular bail application moved by the applicant vide order dated 12.01.2022, hence the present application.
SUBMISSIONS ON BEHALF OF THE OF THE APPLICANT
7. The learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. He submits that there are serious infirmities in the case of the prosecution. He submitted that even though the purported recovery happened in a public place, there are no independent witnesses.
8. He submitted that there is a delay in sending samples to the F
┌────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ serial number of the packages and marked as P-1,2,3,4 and so on” │ │ (emphasis supplied) │ ├────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 66. The applicant is alleging non-compliance of standard │ │ encapsulated in paragraph 1.7(a) of the Standing Order No. 1/88. The │ │ same provides that it is advisable to draw a sample from each │ │ packages/container in case of seizure of multiple packages/containers. │ └────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
67. In the present case only 2 samples were taken out from the 23 bricks (3 red ice bricks; 6 rajdhani bricks; and 14 bricks with nothing written on them) recovered from co-accused Barun and 10 bricks (3 bricks with ‘mato’ written on them; and 7 bricks with ‘brown’ written on them) recovered from the applicant. It is the case of the applicant that the sample ought to have been taken from each type of brick that was recovered from the accused persons and five samples should have been sent to FSL- (1) one from the 3 red ice bricks; (2) one from the 6 rajdhani bricks; (3) one from 14 bricks with nothing written on them; (4) one from the 3 bricks with ‘mato’ written on them; and one from the 7 bricks with ‘brown’ written on them.
68. The primary question that is to be considered is whether the compliance of Standing Order No. 1/88 issued under the ambit of Section 52A of the NDPS Act is to be necessarily followed while drawing samples and whether the same mandates strict compliance or not.
69. At the outset, before discussing the precedents on this issue, it is relevant to note that while the applicant has restricted his objection to non-compliance of Standing Order No. 1/88, almost pari materia provisions are found in Standing Order No.1/89 for sampling. The relevant portion of the same is reproduced hereunder: “SECTION (II) - GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC.
2.1. All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure.
2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.
2.3. The quantity to be draw in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is draw.
2.4. In the case of Seizure of a single package/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.
2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the content of each package given identical results on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/containers/except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.
2.6. Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn.
2.7. If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package/container.
2.8. While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should bear the S. No. of the package(s)/containers from which the sample has - been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope which should also be sealed and marked ‘secret-drug sample/Test memo’ is to be sent to the chemical laboratory concerned.
3.0 The Seizing officers of the Central Government Departments, viz., Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control Bureau, Directorate of Revenue Intelligence etc. should dispatch samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office depending upon the availability of test facilities. The other Central Agencies like BSF, CBI and other Central Police Organizations may send such sample to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement Agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. 3.[1] After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchanama. Original wrappers shall also be preserved for evidentiary purposes.” Nature of Standing Orders
70. The Hon’ble Apex Court in the case of Union of India vs Bal Mukund: (2009) 12 SCC 161, observed as under: “10. The manner in which a sample of narcotic is required to be taken has been laid down by the Standing Instruction No. 1/88, the relevant portion whereof reads as under: “e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/ container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.” xxx
39. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.”
71. The Hon’ble Apex Court in the case of Noor Aga v. State of Punjab: (2008) 16 SCC 417, observed as under: “91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.”
72. The Hon’ble Apex Court in the case of Khet Singh v. Union of India: (2002) 4 SCC 380 had observed that the standing instructions are intended to guide the officers to ensure fair investigation. The relevant portion of the same is reproduced hereunder:
the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. xxx
14. In State of H.P. v. Pirthi Chand [(1996) 2 SCC 37: 1996 SCC (Cri) 210] it was held that it would thus be settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The court is required to scan the evidence with care and to act upon it when it is proved and the court would hold that the evidence would be relied upon.
15. In Radha Kishan v. State of U.P. [AIR 1963 SC 822: (1963) 1 Cri LJ 809] this Court held that the evidence obtained by illegal search and seizure would not be rejected but requires to be examined carefully. In State of Maharashtra v. Natwarlal Damodardas Soni [(1980) 4 SCC 669: 1981 SCC (Cri) 98] it was held that even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials.
16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.”
73. From the aforesaid judgements it is clear that substantial compliance of the Standing Orders is a requirement of law and is to be insisted upon to maintain the sanctity of the samples of the seized contraband.
74. Another aspect that is relevant to note is that Standing Order No. 1/88 and Standing Order No. 1/89 were issued by the Central Government in exercise of the power under Section 52A(1) of the NDPS Act. As discussed above, the provision of Section 52A of the NDPS Act applies in regard to the disposal of the seized contraband. The manner of mixing the samples is provided for the purpose of filing an application under Section 52A of the NDPS Act and for the disposal of the contraband.
75. Section 52A of the NDPS Act prescribes the procedure for disposal of seized narcotic drugs and psychotropic substances and the same, in no manner, lays down the procedure for search of the accused and the resultant seizure of the contraband. As discussed above, the Standing Orders issued by the Government from time to time, while exercising power under Section 52A of the NDPS Act, though are a requirement of law which need to be substantially complied with, however, the intent and the provisions thereof, in the opinion of this Court, cannot be imported in the procedure for search and seizure at the time of investigation. As noted in Paragraph 54 above, the said aspect has been clarified by the Hon’ble Apex Court in State of Punjab v. Makhan Chand (supra).
76. Be that as it may, as noted in Khet Singh v. Union of India (supra), even if it is to be accepted that there is some deviation in the sampling of contraband, there can be circumstances that justify the deviation from the procedure. The same alone will not render the seizure inadmissible. Whether there was any possibility of the evidence being tampered with or any serious prejudice is caused to the applicant is to be seen during the course of the trial. Effect of non-compliance at the stage of bail
77. The applicant has placed reliance on the judgment in the case of Santini Simone v. Department of Customs: 2020 SCC OnLine Del 2128, where a Coordinate Bench of this Court had acquitted the accused person therein after considering the dictum in a catena of cases that have also been referred by the applicant herein in support of his contentions. The relevant portion of the aforesaid judgment is reproduced hereunder:
quantity of the contraband, the same has not caused any prejudice to the appellant. The Court reasoned that even after taking two samples of 250 grams each, 69.[5] kgs of contraband was still available.
58. In Amani Fidel Chris (supra), four brown colour packets were allegedly recovered. The said packets contained powdery substances, which on being tested, yielded a positive result for heroin. The substances were then mixed properly and weighed with the help of an electronic machine and it was found that the same weighed 1.[5] kgs. Thereafter, two samples of 5 grams each were drawn from the recovered substance and put into zip lock pouches. It was contended that the procedure adopted was not permissible. The procedure of transferring the contents of all four packets into one and then drawing a sample from the mixture had caused a serious prejudice, as it could not be ascertained whether the four packets contained the alleged narcotic. The Court found that the procedure adopted fell foul of the Standing Order No. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau (which was parimateria to Standing Order 1/1989 dated 13.06.1989, issued by Department of Revenue, Ministry of Finance, Government of India). The Court held that where more than one container/package is found, it is necessary that samples be drawn from each separate container/package and be tested with a fieldtesting kit. If the container/packages are identical in shape, size and weight then lots of 10 or 40 container/packages may be prepared. Thereafter, representative samples from each container/package be drawn.
59. In Basant Rai (supra), a Coordinate Bench of this Court considered a case where the accused was allegedly found carrying a polythene bag, containing eight smaller polythene bags, containing a brown colour substance, which was alleged to be charas. The Investigating Officer had taken small pieces from each packet and mixed the same and thereafter, drawn two samples which were sent to FSL for analysis. The Court found fault with the said procedure and allowed the appeal. The Court held as under:
26. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted.
27. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all maybe of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative.”
60. In Edward Khimani Kamau (supra), a Coordinate Bench of this Court rejected the procedure where the substance found in nine packets was transferred into one packet and two samples were drawn from the same. The Court held that it could not be ascertained that all nine packets contained heroin.
61. In Charlse Howell @ Abel Kom (supra), the NCB had allegedly recovered 330 grams of heroin. The powder recovered was packed in 166 polythene strips, which were concealed in the laces/hem of two lehengas. The concealed powder from the 166 strips was collected in a transparent polythene and on weighing, it was found to be 330 grams. Two samples of five grams were drawn and put separately in zip lock polythene pouches. A Coordinate Bench of this Court following the decision of the Supreme Court in Union of India v. Bal Mukund, (2009) 12 SCC 161, held that the procedure adopted was not in conformity with the Standing Order 1/88 dated 15.03.1988, issued by the Narcotics Control Bureau. xxx
67. The entire purpose of drawing a sample and testing the same is to establish the composition of the substance from which the sample is drawn. Keeping this object in view, it must be ensured that the sample is a true representative of the substance recovered, before it can be assumed that the composition of the sample is the same as that of the recovered substances. xxx 73…The print out of the test result would indicate the number of tests conducted. If the contents of each of the packet was tested separately, there would be four such print-outs or one print-out recording the result of four such tests. However, the print out in question has not been brought in evidence, even though it is stated that it was in the possession of PW-4. It is also material to note that it is not the prosecution's case that any heroin was recovered from the appellant. The CRCL test result also does not disclose any presence of heroin in the sample sent for analysis. But the alleged test had also returned a positive result for heroin.
74. In view of the above, this Court is unable to accept that the prosecution has established that the contents of each of the four packets that were allegedly recovered, were tested and found to be charas prior to the contents of the said packets being placed together.
75. Although PW-4 had stated in his cross-examination that the representative samples were drawn from the recovered substance after homogeneously mixing the same, it is obvious that no such homogeneous mixture was made. The substance in each of the four packets was allegedly a “hardened substance”. It also appears that the same was in the form of a spherical balls. There is no evidence to indicate that the said hardened substance from each of the four packets was crushed and then mixed together. 76… Considering that the substance was a hardened substance, there could be no question of mixing them to obtain a homogeneous mixture; placing four balls (or for that matter a number of spheres) together does not amount to creating a homogeneous mixture.”
78. It is pointed out that a Coordinate Bench of this Court have extended the benefit of non-compliance of the Standing Orders to the accused therein and granted bail in the cases of Laxman Thakur v. State (Govt. of NCT of Delhi) (supra) and Kashif v. Narcotics Control Bureau (supra). It is noted in the aforesaid cases that once it is noted that the Standing Instruction 1/88 is a “requirement of law” as held by the Hon’ble Apex Court in Union of India v. Bal Mukund (supra), the non-compliance of the same would cause serious prejudice to the applicant. It is observed that once the collection of the sample is held to be faulty, the rigours of Section 37 of the NDPS Act would not be applicable.
79. It is pertinent to note that in Laxman Thakur v. State (Govt. of NCT of Delhi) (supra) and Kashif v. Narcotics Control Bureau (supra), the Court had placed reliance on the judgments in criminal appeals, that is, Santini Simone v. Department of Customs (supra) and Union of India v. Bal Mukund (supra).
80. The applicant also placed reliance on the judgment in the case of Ram Bharose v. State (Govt. of NCT of Delhi): Bail Appln. 1623/2022 where this Court granted bail to the accused therein as drawing of the samples did not appear to be in consonance with the Standing Operating Procedure in Standing Order No. 1/88 as per the contents of the FIR.
81. Similarly, relying upon Kashif v. Narcotics Control Bureau (supra), this Court in Amina v. State NCT of Delhi (supra), was dealing with a case where all pudiyas of contraband were mixed in a jar violating Standing Order No.1/88. The Court observed that the sample was not representative and its composition was likely to vary significantly and the same was a reasonable ground to doubt the accused person’s guilt.
82. Bail was granted by this Court where the sampling procedure followed by the prosecution was not in conformity with the Standing Orders on the basis of similar observations in Gurpreet Singh v. State of NCT of Delhi (supra), Sarvan v. State Govt. of NCT of Delhi: Bail Appln. 2781/2022, Sandeep @ Chiku v. State (NCT of Delhi): 2024:DHC:528 and Ginkala Meddilety v. the State: Bail Appln. 1133/2022.
83. The prosecution has primarily argued that the procedural lapses have to be determined during the course of the trial and not in a proceeding for grant of bail. They have relied on a judgment of a Coordinate Bench of this Court in Shaildender v. State NCT of Delhi: Bail Appln. 3508/2021.
84. The prosecution has also relied on the judgment of the Hon’ble Apex Court in the case of State of Punjab v. Balbir Singh: 1994 3 SCC 299 where it was held that while officers cannot totally ignore the provisions under NDPS Act, mere non-compliance will not vitiate the prosecution. It was held that prejudice caused by the noncompliance would have to be shown by the accused and alternatively, the prosecution would need to give a proper explanation for noncompliance, without which the non-compliance will adversely effect the prosecution’s case.
85. The State has also relied on Arvind Yadav in JC through his Parokar v. Government of NCT of Delhi: Bail Appln. 1416/2021 where it was held that non-compliance of Section 52A of the NDPS Act would not vitiate the trial.
86. The Court at this stage is seized with the limited question of whether the alleged non-compliance would entitle the applicant to bail. As pointed by the prosecution, most of the judgments relied upon by the applicant are ones that are passed in criminal appeals or rely upon the dictum in criminal appeals.
87. In all these cases, it has been essentially held that in a situation of improper sampling, the onus is on the prosecution to establish that the seized substance is the contraband and in the absence of proper procedure being followed, the recovery would be deemed suspicious. The Courts have noted the irregularity in the procedure and discrepancies in the case of the prosecution to hold that the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt.
88. The said question, in the opinion of this Court, can only be determined after the conclusion of the trial and it would be premature to comment on the same while considering the application for bail.
89. The second threshold under Section 37 of the NDPS Act which provides for grant of bail includes the hurdle of the Court having reasonable ground to believe that the applicant has not committed the offence. While the prosecution cannot be given undulated power where their version is treated as the gospel truth, unless ancillary facts suggest suspicious activity or tampering with the contraband, at the stage of consideration of bail, the benefit of an alleged procedural anomaly would not entitle the applicant to bail.
90. As noted above, Section 52A of the NDPS Act provides for disposal of the contraband. The aforementioned standing orders have been issued under the ambit of Section 52A of the NDPS Act itself. In such circumstances, where the actual seized sample has not been disposed of, it will be open to the prosecution to prove the recovery through the actual contraband as well.
91. It has been observed by the Courts on numerous occasions that the police officials fail to strictly adhere to the minute intricacies of the mandate of the standing instructions. Even though the same shows an abysmal state of affairs, this Court is of the opinion that accused persons cannot be allowed to go scot free on minute irregularities in procedure especially when the prosecution has the opportunity to furnish credible explanation.
92. Prima facie, prejudice caused to the applicant due to the procedural lapse is to be seen in such a case. The lapse should be such that it leaves no conclusion other than the trial being vitiated. Noncompliance of standing orders would, at best, cast suspicion over the veracity of the samples of the seized substance. The same can be overcome by the prosecution by producing evidence to the contrary.
93. Any observation to this effect, at this stage, would be premature. Infirmities in the procedure, if any, will be tested during the course of the trial.
94. This Court is thus not inclined to grant bail to the applicant on the ground of improper sampling. Non-Joinder of Independent Witnesses and No Photography/ Videography
95. The learned counsel for the applicant has also raised the issue that no independent witness was joined by the prosecution even though the co-accused was apprehended on the basis of secret information, and the applicant was apprehended later on the basis of his disclosure. 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.
96. In the present case, secret information was received at about 8:55PM on 15.02.2021. It is the case of the prosecution that the raiding team reached near the Ramlila Maidan at about 9:40 PM and asked 5-7 people along the route to join the investigation, however, all of them left stating their compulsions. It is stated that another attempt was made after reaching the spot to include passers-by in the investigation, however, they left as well. It is stated in the FIR that no notice could be served to the said individuals due to lack of time. Around 11 PM, the co-accused was spotted and subsequently apprehended. Subsequently, the applicant was apprehended at the instance of the co-accused.
97. 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 same inspires confidence during the trial, however, lack of independent witnesses in certain cases can cast a doubt as to the credibility of the prosecution’s case.
98. 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.
99. 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. The secret information was received almost two hours prior to the co-accused being apprehended. 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 and coaccused were apprehended at a public place.
100. 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.
101. This Court also noted that realising the need of change in time, the Legislature has now passed the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), where the practice of photography and videography has now been made mandatory as part of the investigation.
102. 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.
103. 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. Delay In Trial
104. In the present case, the matter is at the stage of examination of prosecution evidence. It is stated that only two out of the twenty prosecution witnesses have been examined till now. The applicant has been in custody since 18.02.2021.
105. 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 in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 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.”
106. 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:
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.”
107. The Hon’ble Apex Court in Badsha SK. v. The State of West Bengal (order dated 13.09.2023 passed in Special Leave Petition (Crl.) 9715/2023), granted bail to the petitioner wherein who had been in custody for more than two years with the trial yet to begin.
108. 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 Court found that the trial is not likely to be completed in the immediate near future. The petitioner was, therefore, released on bail.
109. 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:
110. A Coordinate Bench of this Court in Gurpreet Singh v State of NCT of Delhi (supra), considered the effect of delay and observed as under:
111. From the foregoing, it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial.
112. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guarantee 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.
113. In the present case, the trial is likely going to take long. Speedy trial in such circumstances does not seem to be a possibility. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time.
CONCLUSION
114. In view of the aforesaid discussion, this Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the ground of absence of independent witnesses, no photography or videography of the recovery and prolonged delay in the trial.
115. In the present case, the prosecution has been given an adequate opportunity to oppose the present application. In view of the facts of the case, prima facie, this Court is of the opinion, that at this stage, there are reasonable grounds to believe that the applicant is not guilty of the alleged offence. Moreover, it is also not disputed that the applicant has clean antecedents, and is thus not likely to commit any offence whilst on bail.
116. However, keeping in mind the fact that the applicant is a foreigner, appropriate conditions have to be imposed while granting bail.
117. The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹1,00,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the following conditions: a. The applicant shall join and cooperate with the investigation as and when directed by the IO; b. The applicant will not leave the boundaries of Delhi without prior permission of the Court, and will deposit his passport with the learned Trial Court; c. The applicant shall provide the details of his permanent address to the learned Trial Court and intimate the Court, by way of an affidavit, as well as the IO about any change in his residential address; d. 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; e. The applicant shall appear before the learned Trial Court on every date of hearing; f. The applicant shall, after his release, appear before the concerned IO/SHO once in every week; g. 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; h. The learned Trial Court is directed to ensure that the certificate of assurance, from the Embassy/ High Commission of the applicant’s native country, that is, Nepal, that the applicant shall not leave the country and shall appear before the learned Trial Court as and when required, is placed on record.
118. 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.
119. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the Trial and also not be taken as an expression of opinion on the merits of the case.
120. The bail application is allowed in the aforementioned terms. AMIT MAHAJAN, J JULY 08, 2024