Full Text
HIGH COURT OF DELHI
JUDGMENT
SUKHVINDER SINGH ..... Applicant
For the Applicant : Mr. Aditya Aggarwal, Mr. Naveen Panwar, Ms. Kajal Garg, Mr. Manas Agarwal & Ms. Shivani Sharma, Advs
For the Respondent : Mr. Sanjeev Bhandari, ASC for the State
SI Vidyakar Pathak, PS-NDPS
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in FIR No. 37/2020 dated 27.11.2020, registered at Police Station New Delhi Railway Station, for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1885 (‘NDPS Act’).
2. The brief facts of the present case are that on 27.11.2020, at around 2:50 PM, the complainant, namely, Head Constable Joginder Singh, who was present at the New Delhi Railway Station near Base Kitchen, saw one person carrying a bag on his back and another in his right hand. On suspicion, Head Constable Joginder signalled the person to stop, however, the said person started walking speedily.
3. It is alleged that Head Constable Joginder detained the suspected person after a brief chase. In the meantime, Constable Rahul from GRP Police Station also reached the spot. Thereafter, Head Constable Joginder and Constable Rahul questioned the suspected person about the articles in both his bags. It is alleged that when the bags were checked, contraband Ganja was found in them.
4. It is alleged that Head Constable Joginder and Constable Rahul took the suspected person along with the bags to the New Delhi Railway Police Station where he was later identified as Sukhvinder Singh (the applicant). It is alleged that 30 kg of Ganja (that is, 10 Kg Ganja in one bag and 20Kg Ganja in the other bag) was recovered in total from the bags being carried by the applicant. Samples weighing 2 Kg were drawn from each bag.
5. It is alleged that 6-7 passers-by outside the police station were informed about the situation and asked to join the police action, however, all of them refused and left without disclosing their name and address citing the legitimate compulsion of their journey. It is stated that no notice could be given to the said individuals due to lack of time.
6. The applicant was arrested in the present case on 27.11.2020.
7. The application under Section 52A of the NDPS Act for drawing samples was moved by the prosecution before the learned Magistrate on 14.12.2020.
8. The learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. He submitted that the present case is one where allegedly chance recovery was made from the applicant. Thus, there is more chances of false implications. He submitted that if police is given such undulated power, they can arrest anyone at their behest on the pretext of recovery of drugs.
9. He submitted that the applicant was apprehended from New Delhi Railway Station around 2:50 PM. He submitted that the Railway Station is undisputably one of the most crowded places where it should have been easy for the prosecution to secure independent witnesses. He submitted that even otherwise, many government employees, that is, para-military forces, local Police, CRPF, Ticket Checker, are also deputed at the Railway Station despite which not a single public witness has been cited in the present case. He submitted that no serious effort was made by the prosecution to join public witnesses. He placed reliance on the judgment in the case of Kishan Chand v. State of Haryana: (2013) 2 SCC 502, where the Hon’ble Apex Court had observed that the lack of independent witnesses in the recovery or in the entire process of investigation casts a shadow of doubt over the case of the prosecution.
10. He placed reliance on the judgment in the case of Krishan @ Babu v. State: BAIL APPLN. 2804/23, where a Coordinate Bench of this Court observed that the absence of independent witnesses is a relevant factor for granting bail to an accused person, especially when the recovery is effectuated from a public place in broad daylight.
11. He further submitted that the prosecution has also failed to secure any CCTV Footage despite multiple CCTV cameras being installed at vital places. He placed reliance on the judgment of a Coordinate Bench of this Court in Ram Prakash v. State: 2014 SCC OnLine Del 6936 where recovery was effectuated at a Railway Station. The Court had observed the failure of police to make an effort for collecting CCTV footage of the place of incident and noted that the Police Authorities could not be excused for not improving its methods of gathering evidence and not arranging for a videograph or photographs of the place where raid was conducted. He also placed reliance on the judgment passed by the Hon’ble Apex Court in Shafhi Mohd. v. State of H.P.: (2018) 5 SCC 311 where the Hon’ble Apex Court had observed that steps ought to be taken to introduce videography in investigation.
12. He placed reliance on Field Officers Handbook issued by the Narcotics Bureau Reinforce whereby it is stipulated that to avoid a situation of accused person alleging foul play at the time of recovery, all recovery and concealment methods should be videographed simultaneously.
13. He submitted that even though recovery was made on 27.11.2020, the application under Section 52A of the NDPS Act was filed belatedly on 14.12.2020 after an unexplained delay of 17 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.
14. He further submitted that the samples were also belatedly sent to the FSL Laboratory on 30.12.2020. 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. He further placed reliance on the judgment of the Hon’ble Apex Court in the case of Noor Aga v. State of Punjab: (2008) 16 SCC 417 to contend that the guidelines in the Standing Order cannot be blatantly flouted and the substantial compliance of the same is crucial to ensure that the sanctity of physical evidence remains intact.
15. He submitted that the applicant has been in judicial custody since 27.11.2020. He submitted that only 2 witnesses had been examined and the trial is likely to take long. He submitted that the matter regarding the alleged violation of procedural safeguards contained in the NDPS Act cannot be kept in abeyance for consideration during the course of the trial.
16. Per contra, the learned Additional Standing Counsel strongly opposed the grant of any relief to the applicant. He submitted that commercial quantity of contraband has been recovered from the applicant in the present case and the rigours of Section 37 of the NDPS Act are thus attracted against the applicant.
17. He submitted that the present case is one where recovery has been made by chance and lack of strict adherence to the Standing Orders, delay in preferring the application under Section 52A of the NDPS Act or absence of independent witnesses are merely procedural irregularities and would not vitiate the trial. He relied on the judgment of the Hon’ble Apex Court in the case of State of Punjab v. Balbir Singh: (1994) 3 SCC 299 in this regard.
18. He submitted that it is trite law that merely because there is no independent witness, it cannot be said that the accused person has been falsely implicated and the case of the prosecution cannot be rejected solely on the said ground [Ref. Dharampal Singh v. State of Punjab: (2010) 9 SCC 608; Jarnail Singh v. State of Punjab: (2011) 3 SCC 521; Mukesh Singh v. State (NCT of Delhi): (2020) 10 SCC 120; Raveen Kumar v. State of Himachal Pradesh: 2020 SCC OnLine SC 869 etc]. He submitted that when it is not established that the police officers had any animosity against the accused person, reliance on the testimonies of official witnesses cannot be faulted with. He further submitted that the absence of independent witnesses merely casts an additional duty on the Court to scrutinize the testimonies of the official witnesses, and the same would be seen during the course of the trial.
19. He submitted that the Handbook issued by Narcotics Control Bureau has no legal efficacy and the same is not akin to a statute. He submitted that a Coordinate Bench of this Court in the case of Sagar v. State (NCT of Delhi): 2024 SCC OnLine Del 1419 had observed that non-compliance of the same would be a subject matter of the trial.
20. He submitted that the defences of the applicant in regard to any procedural anomalies would be a matter of trial.
ANALYSIS
21. Arguments were heard in detail from the learned counsel for the parties.
22. 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.
23. It is unequivocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfill the conditions stipulated in Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under: “37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail.”
24. 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.
25. The learned counsel for the applicant submitted that a liberal interpretation of Section 37 of the NDPS Act must be taken into account by the Court in the present case on the following grounds: a) Delay in filing application under Section 52A of the NDPS Act and delay in sending samples to FSL; b) Non-joinder of independent witnesses and no photography/videography; and c) Delay in trial.
26. 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 16 days. It is argued that the samples should have been dispatched to the FSL within 72 hours after seizure.
27. This Court by a separate Judgment today in 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 ort Standing Order No.1/88 is not a ground for grant of bail.
28. Evidently, there is a delay of more than 15 days in compliance of the procedure under Section 52A of the NDPS Act. It is open to the applicant to press the aforesaid defence 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.
29. 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 in broad daylight at the New Delhi Railway Station. 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.
30. 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.
31. The present case is based allegedly on a chance recovery and it is possible that the Investigating Agency did not get sufficient time to prepare. However, given the crowded nature of the place from where the recovery was made, it is peculiar that no public witness has joined the search.
32. A bald statement has been made, as stated in the chargesheet filed, that 6-7 passers-by were asked outside the police station to take part in the police action, however, they refused to join the investigation and left the spot citing legitimate compulsion of their journey. The recovery in the present case was effectuated at the New Delhi Railway Station near Base Kitchen. It is unclear as to why the police officers only requested passers-by to join the investigation instead of the government employees or shopkeepers who must have been available at the New Delhi Railway Station. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. In the present case, the matter is at the stage of prosecution evidence. It is stated that only two witnesses have been partly examined out of the thirteen listed prosecution witnesses. As noted above, the applicant has been in custody since 27.11.2020. There is no likelihood of the trial being completed in the near future.
38. It is trite law that grant of bail on account of delay in trial cannot be said to be fettered by the embargo under Section 37 of the NDPS Act. The Hon’ble Apex Court, in the case of Mohd. Muslim v. State (NCT of Delhi) (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.” (emphasis supplied)
39. The Hon’ble Apex Court in Rabi Prakash v. State of Odisha: 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein held as under:
40. The Hon’ble Apex Court in Badsha SK. v. The State of West Bengal (order dated 13.09.2023 passed in Special Leave Petition (Crl.) 9715/2023), granted bail to the petitioner wherein who had been in custody for more than two years with the trial yet to begin.
41. Similarly, in Man Mandal & Anr. v. The State of West Bengal (order dated 14.09.2023 passed in Special Leave Petition (Crl.) 8656/2023 decided on 14.09.2023), the petitioner therein had been in custody for almost two years and the Hon’ble Apex Court found that the trial is not likely to be completed in the immediate near future. The petitioner was, therefore, released on bail.
42. In Dheeraj Kumar Shukla v. State of U.P.: 2023 SCC OnLine SC 918, the Hon’ble Apex Court released the petitioner therein on bail, and observed as under:
the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.”
43. A Coordinate Bench of this Court in Gurpreet Singh v State of NCT of Delhi: 2024:DHC:796, considered the effect of delay and observed as under:
44. From the foregoing, it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act.
45. 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.
46. The applicant is also stated to be of clean antecedents. Therefore, I am satisfied that reasonable grounds exist for believing that the applicant is not likely to commit any offence while on bail.
47. The applicant is, therefore, directed to be released on bail 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 country without the permission of the learned Trial Court; c. The applicant shall appear before the learned Trial Court as and when directed; d. The applicant shall provide the address where he would be residing after his release and shall not change the address without informing the concerned IO/ SHO; 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.
48. 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.
49. 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.
50. The bail application is allowed in the aforementioned terms.
51. The pending applications are also disposed of. AMIT MAHAJAN, J JULY 08, 2024