Vishwajeet Singh v. State (NCT of Delhi)

15. He further submits that the Search and Seizure was carried out between sunset and sunrise without recording the belief, as is required under Section 42(1) of the NDPS Act, thereby, making the search and seizure inadmissible in evidence. He places reliance on the judgment of Supreme Court in Mohinder Singh v. State, Panaji, Goa, AIR 1995 SC 1157.

16. He further submits that the packets allegedly recovered from the accused persons were opened by HC Man Mohan, who is not an empowered officer under Section 42 of the NDPS Act, thereby compromising the very recovery, making it inadmissible in evidence.

17. He further submits that the application under Section 52A of the NDPS Act was allegedly moved by SI Vivek Gautam, that too without inventory, and not by the Officer-In-Charge of the Police Station: Badarpur. He submits that SI Vivek Gautam was neither the Officer-In-Charge nor the empowered officer as defined in Section 53 of the Act, nor the Officer who carried out the seizure proceedings on the spot. He submits that, therefore, the alleged proceedings conducted under Section 52A of the NDPS Act are illegal. Reliance in this regard is placed on the judgment of this Court in Rohit v. Central Bureau of Narcotics 2020 SCC OnLine Del 1584.

18. He further submits that the chargesheet itself states that, though the samples were drawn on 07.12.2020, it was only on 01.04.2021, on the refusal of the FSL to accept these samples, that they were produced before the learned Metropolitan Magistrate for the signature of the learned Metropolitan Magistrate. He submits that the chargesheet further records that the learned Metropolitan Magistrate refused to sign the samples. He submits that, therefore, there is nothing on record to show as to how the samples were later deposited with FSL without the signatures of the learned Metropolitan Magistrate.

19. He submits that there is also no incriminating link with the alleged recovery of the contraband and the substance produced before the learned Metropolitan Magistrate for drawing samples. The Malkhana Register has not been placed on record. In support, he places reliance on the judgments of the Supreme Court in Valsala v. State of Kerala AIR (1994) SC 117 and State of Rajasthan v. Gurmail Singh (2005) 3 SCC 59.

20. He further submits that the alleged independent witness namely Mr.Rupesh Gupta (PW-1) has not supported the case of the prosecution in his evidence. PW-2 (ASI Man Mohan) has made contradictory statements including on having signed the Seizure Memo and samples having been drawn on the spot. He has further deposed that no mobile phone was recovered from the personal search of the accused.

21. The learned counsel for the Applicants, on the basis of the above, submits that the accused have been able to cast grave doubt on the case of the prosecution and are, therefore, entitled to be released on Bail.

22. He submits that the Applicants have been in custody since 03.12.2020, that is, a period of more than three years and they have, otherwise, clear antecedents with no criminal case except the present one. Placing reliance on the judgment of the Supreme Court in Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109, he submits that the Applicants are entitled to be released on bail. Submission of the learned APP:

23. On the other hand, the learned APP for the State submits that in the present case, it was only a chance recovery of narcotics from the accused. He submits that, therefore, the provisions of Section 43 of the NDPS Act will not be applicable in the facts of the present case.

24. He further submits that there is material on record in the form of CDR details, which shows that the Applicants were in constant touch with each other through their mobile phones, therefore, there is evidence of them having acted in conspiracy with each other. He submits that, therefore, Section 29 of the NDPS Act has rightly been invoked against the accused persons. He places reliance on the judgment of this Court in Awadhesh Yadav v. State Govt of NCT of Delhi, Neutral Citation no.2023:DHC:8529.

25. He submits that the plea of the learned counsel for the Applicants that the provisions of Section 52A of the NDPS Act have not been complied with or that there are contradictions in the statement of ASI Man Mohan, are matters which are to be considered in the trial and cannot be a ground for the release the Applicants on bail, at this stage.

26. He submits that mere delay in trial is also not a ground to release the accused persons on bail in such heinous crimes.

ANALYSIS AND FINDINGS:

27. I have considered the submissions of the learned counsels for the parties.

28. It is the case of the prosecution that the two accused persons were found travelling together and were apprehended together on 02.12.2020. They were carrying bags from which 12 kg of Ganja each was recovered. Though individually the quantity recovered would be intermediate, the prosecution by analysing the CDR details of the accused persons, alleges that as they were acting in conspiracy with each other, the quantity recovered from both of them have to be clubbed together making it a commercial quantity.

29. In Amarsingh Ramjibhai Barot (Supra), the Supreme Court held that merely because the accused persons were found together but were individually carrying the recovered substance, in the absence of any other evidence to suggest that there was any abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act, said provision cannot be invoked. The said case was, however, considering the order of conviction passed by the High Court.

30. In Nirmala (Supra) and Sagar Nana Borkar (Supra), unlike the present case, the prosecution had not alleged any other material/evidence against the accused but for them being travelling together with contraband.

31. A learned Single Judge of this Court in Awadhesh Yadav (Supra), after referring to the various precedents on the issue of clubbing together of the quantities of contraband recovered individually, observed as under:

v. if an accused is a habitual offender, it gives rise to an inference that he knows the tricks of the trade. In such a situation, previous involvement of the accused in the case(s) under the NDPS Act, is an additional factor which could be considered, besides other incriminating circumstances, for adding the quantities of contraband recovered from two or more co-accused.”

32. Applying the above test, at this stage of the proceedings, the invocation of Section 29 of the NDPS Act against the accused persons cannot be faulted. The submission made by the learned counsel for the Applicants shall have to be considered on the appreciation of evidence that is led by the prosecution before the learned Trial Court, and cannot be pre-judged by this Court at this stage.

33. Section 42 of the NDPS Act reads as under:

34. For the said Provision to be invoked, the officer mentioned in the said Section should have the reason to believe from personal knowledge or because of an information given by any person and taken down in writing, that any narcotic drug, psychotropic substances, or controlled substances or any documents in relation thereto is kept or concealed in any building, conveyance or enclosed place. In the present case, the case of the prosecution is that this was a chance recovery. There was no prior information or any suspicion, otherwise, when the accused were stopped/apprehended at the police picket.

35. In Mohinder Singh (Supra), the Supreme Court has held that the NDPS Act being pre-emptive legislation, the interpretation has to be strict. However, in my opinion, the same cannot come to the assistance of the accused at this stage of the trial.

36. This, however, leaves me with the two important submissions of the learned counsel for the Applicants. The first being that the mandate of Section 52A of the NDPS Act has not been complied with, and there is no evidence as to how the samples were sent to FSL for obtaining its opinion. The second submission of the learned counsel for the Applicants is that SI Vivek Gautam who filed the application under Section 52A of the NDPS Act before the learned Metropolitan Magistrate, was not an empowered officer under Section 53 of the NDPS Act nor the officer who carried out seizure proceedings on the spot.

37. Sections 52 and 52A of the NDPS Act are reproduced herein below:

38. A reading of the above Provisions would show that any article seized under Section 42, 43 and 44 of the NDPS Act shall be forwarded without unnecessary delay to the Officer-In-Charge of the nearest Police Station or the officer empowered under Section 53 of the NDPS Act. Sub-Section (2) of Section 52A of the NDPS Act further states that the Officer-In-Charge of the nearest Police Station or the officer empowered under Section 53 of the NDPS Act or under Section 52(1) of the NDPS Act, shall prepare an inventory of the narcotics drug, psychotropic substances, controlled substances or conveyances or any evidence, and shall make an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared and for taking photographs of the same and being certified by the Magistrate, and for allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. SI Vivek Gautam is not shown to be the person before whom the seizure was made nor, presently, it is shown that he is the Officer- In-Charge of the Police Station or the officer empowered under Section 53 or 52A(1) of the NDPS Act.

39. This apart, the charge-sheet filed in the present case inter-alia states as under: “During the investigation of the case on 28/01/2021, Const Vijay No-2178/SE along with Packets of Samples of Ganja in the case vide RC No-5/21/2021, Dated-28/01/2021 was sent to FSL, Rohini to deposit the samples. The Samples could not be deposited the Chemistry Division of FSL, Rohini and officials asked to sent the samples through fresh forwarding letter. Again on 30/03/2021, samples of Ganja of present case was sent to FSL, Rohini through Const Vijay No-2178/SE, vide RC No- 35/21/2021, Dated-30/03/2021. The Samples could not be deposited the Chemistry Division of FSL, Rohini and officials asked to get signed the sample packets by Magistrate who had done sampling and sealed the parcels in the present case which was not signed by the Magistrate on 07/12/2020 when sampling was done. Later, on 01/04/2021, samples were produced before Shri Bhanu Pratap Singh, Ld MM, South East Saket, Delhi, and he was requested to sign the samples so that samples can be deposited in the FSL for examination but Ld MM not signed the sample parcels of the case and due to which samples of recovered contraband in the case could not be deposited so far in FSL for examination. After depositing the samples and after getting final opinion from FSL regarding nature of recovered narcotic substance in the case, supplementary charge sheet shall be filed before Hon'ble Court.”

40. It is the case of the prosecution that the samples were drawn on 07.12.2020. The charge-sheet records that on 01.04.2021, the learned Metropolitan Magistrate has refused to sign on the samples, that is, certifying the same. It is not explained as to how the samples were thereafter sent to FSL and the report was obtained. The Applicants have also alleged that the Malkhana Register has also not been placed on record before the learned Trial Court. The same casts a serious doubt on the case of the prosecution.

41. The learned counsel for the applicants has also stated that there are material contradictions in the statement of ASI Man Mohan (PW- 2).

42. Secondly, the Applicants have been in custody since 03.12.2020. The learned Trial Court in its order dated 06.06.2023, while rejecting the application of the applicants for being released on bail, has itself recorded that the trial is at a nascent stage and the witnesses are yet to be examined and the evidences are yet to be proved.

43. In Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352, the Supreme Court, considering the application filed by the accused therein for being released on bail, observed as under:-

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 the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal….”). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab made observations to this effect. In Shaheen Welfare Association v. Union of India again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on: “a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an undertrial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods.” xxxx

19. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.

20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

21. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.

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 country. 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. Staten as “a radical transformation” whereby the prisoner: “loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.”

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”(also see Donald Clemmer's „The Prison Community‟ published in 1940). Incarceration has further deleterious effects where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

44. In Rabi Prakash (Supra), the Supreme Court reiterated the above principles, as under:- “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

45. In Badsha SK. v. The State of West Bengal (order dated 13.09.2023 passed in Special Leave Petition (Crl.) 9715/2023), the accused therein had been in custody for more than two years and four months with the trial yet to begin. The Court therefore, released the accused on bail.

46. Similarly, in Man Mandal & Anr. v. The State of West Bengal (Special Leave Petition (Crl.) 8658/2023 decided on 14.09.2023), the accused therein had been in custody for almost two years and the Court found that the trial is not likely to be taken up for hearing in the immediate near future. The accused was, therefore, released on bail.

47. In Dheeraj Kumar Shukla v. State of U.P., 2023 SCC OnLine SC 918, the Supreme Court again released the accused therein on bail, observing as under:-

48. In Gurpreet Singh v State of NCT of Delhi, Neutral Citation No.2024:DHC:796, this Court has considered the effect of delay in trial, observing as under:-

49. From the above, it is apparent that in spite of the stringent test to be met by the accused under Section 37 of the NDPS for being released on bail, it has been held that the same does not fetter grant of Bail to the accused on the ground of undue delay in the completion of trial. It has been held that prolonged incarceration generally militates against the right to life and liberty guaranteed under Article 21 of the Constitution of India and therefore, the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act.

50. In the present case, therefore, the Applicants are also entitled to be released on bail on the ground that the trial is not likely to conclude anytime soon, while the Applicants have been in custody for a long period.

51. I also notice that it is not the case of the prosecution that the Applicants are involved in any other case of similar nature or other criminal cases. The Applicants are stated to be young boys and their prolonged incarceration may itself result in the denial of their fundamental right to life and liberty guaranteed under Article 21 of the Constitution of India.

52. Keeping in view the overall circumstances of the case, therefore, it is directed that the Applicants, that is, Vishwajeet Singh and Dev Kumar @ Golu be released on Bail in FIR No.564/2020 registered at Police Station: Badarpur, South-East District, New Delhi under Sections 20/61/85 of the NDPS Act, on furnishing a personal bond in the sum of Rs.50,000/- each, with one local surety each, of the like amount to the satisfaction of the learned Trial Court, and further subject to the following conditions: i. The Applicant(s) will not leave the country without the prior permission of the learned Trial Court. ii. The Applicant(s) shall provide his permanent address to the learned Trial Court. The Applicant(s) shall also intimate the Court, by way of an affidavit, and to the IO regarding any change in his residential address. iii. The Applicant(s) shall appear before the learned Trial Court as and when the matter is taken up for hearing. iv. The Applicant(s) shall provide all/latest/fresh mobile numbers to the IO concerned, which shall be kept by the applicant(s) in a working condition at all times and shall not be switched off or changed by him without prior intimation to the learned Trial Court and the IO concerned. The mobile location be kept on at all times. v. Applicant shall report before the concerned IO every 15 days. vi. The Applicant(s) shall not indulge in any criminal activity and shall not communicate with or come in contact, directly or indirectly, with any of the prosecution witnesses. In case the Applicant(s) is found involved in any case relating to the NDPS Act, it will be open to the prosecution to file an appropriate application seeking cancellation of his bail in the present case as well.

53. Needless to state, any observation touching upon the merits of the case is purely for the purposes of deciding the question of grant of Bail and shall not be construed as an expression on merits of the matter.

54. The Bail applications are disposed of in the above terms.

55. Copy of this judgment be sent to the Jail Superintendent for information and necessary compliance.

NAVIN CHAWLA, J. FEBRUARY 28, 2024/Arya/AS