State (Govt. of NCT) of Delhi v. Amit

1. The present petition under Section 482 read with Section 439(2) of the Code of Criminal Procedure, 1973, has been filed assailing the order dated 20.11.2023 passed by the Court of the Additional Sessions Judge, Special Judge (NDPS), Patiala House Courts, New Delhi, whereby bail was granted to the respondent in Sessions Case NO. 409/2019 arising out of FIR No. 40/2019 registered under Sections 21/29/61/85 of the NDPS Act at PS Special Cell.

2. Briefly stated the facts of the matter according to the charge sheet it is that on 13.03.2019, the Special Cell received secret information that accused Amit/Respondent and Ankush were trafficking heroin on the directions of Mukesh and were to deliver a consignment near Veer Apartments, Rohini. A raiding team was constituted and, after making efforts to include public witnesses, both accused were apprehended at the spot in a Hyundai Xcent car. After informing them of their rights under Section 50 of the NDPS Act and obtaining refusals in writing, a search was conducted. Two kilograms of heroin were recovered from the bag of Ankush and another two kilograms from beneath the driver’s seat of the car. Both were arrested, their disclosure statements recorded, and the car along with their mobile phones were seized.

3. Further investigation led to the arrest of Mukesh the same night near Max Hospital, Haiderpur, following disclosures made by Amit and Ankush. Although no drugs were recovered from Mukesh personally, his role in the drug operation was confirmed, and he was arrested after proper compliance with legal procedures. Voice call interceptions between the accused and their associates were analysed, and relevant incriminating calls were extracted, transcribed, and seized as evidence. Mobile phone data, vehicle ownership documents, and reports under Section 57 NDPS Act were duly prepared and submitted. The heroin samples were sent to FSL, and permission for voice sampling of the accused was obtained from the court.

4. The learned APP for the state submitted that the trial court erred in granting bail to the respondent on the ground of alleged noncompliance with Section 52A of the NDPS Act. He placed reliance on the recent decision of the Supreme Court in NCB v. Kashif, Criminal appeal 5544/2024dated 20.12.2024, wherein it was held that noncompliance with Section 52A NDPS act, does not by itself vitiate the trial and is not a sufficient ground for granting bail. It was contended that the trial court overlooked the settled legal position concerning “conscious possession” of the contraband under Section 15 of the NDPS Act, which is clearly made out from the material on record. Furthermore it has been submitted, that minor procedural irregularities, absent demonstrable prejudice, cannot justify release on bail. He emphasized that in the present case, the seal on the seized contraband was intact, ensuring the evidentiary sanctity of the samples.

5. Per contra, learned counsel for the respondent opposed the cancellation petition and submitted that the trial court had rightly exercised its discretion in granting bail, having regard to material procedural irregularities. She contended that the samples of the seized contraband were not produced before the Magistrate in a timely manner and were sent to the Forensic Science Laboratory only after an inordinate delay of 1.[5] years. In support, she relied upon the judgment of the Supreme Court in Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109, where the Court held that such procedural lapses can seriously undermine the prosecution’s case. She submitted that the delay in sending samples adversely impacts the chain of custody and the presumption under Section 54 of the NDPS Act. According to her, the trial court was justified in taking these aspects into account while granting bail. It was further contended that such procedural safeguards are not empty formalities and have a direct bearing on the fairness of the trial. The counsel therefore urged that no case is made out for cancellation of bail.

6. Additionally, the learned counsel for the respondent submitted that the accused has already undergone incarceration for a period of four years and nine months. She has submitted that in Rabi Prakash (supra), inter alia the top court observed that prolonged incarceration of over three and a half years militates against the fundamental rights guaranteed under Article 21 of the Constitution. It was held that in such circumstances, conditional liberty must override the statutory embargo imposed by Section 37 of the NDPS Act. Drawing a parallel with the present case, it was submitted that the respondent’s continued detention, in the face of such extended custody, would amount to a violation of his fundamental rights. The learned counsel contended that the bail was not granted solely on the basis of procedural delay, but also on constitutional grounds, which the trial court had rightly considered. Furthermore, it was emphasized that the respondent has not misused the liberty granted to him, nor has there been any complaint regarding violation of bail conditions.

7. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted has to be considered and dealt with on different basis. The power of cancellation of bail should be exercised with care and circumspection as cancellation of bail jeopardise the personal liberty of a person. Cancellation of bail should not be done in a routine manner. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail broadly are interference or attempt to interfere with due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. However, these instances are merely illustrative and not exhaustive. Where it appears to the superior court that the court granting bail acted on irrelevant material or there was non-application of mind or where court does not take note of any statutory bar to grant of bail, order for cancellation of bail can be made. The court considering the application for cancellation of bail has to take note of all relevant aspects.

8. Coming to the facts of the case, the respondent was taken into custody on 13.03.2019 and according to the prosecution/state the respondent was in possession of 2 kg heroin. The impugned order noted that although samples were drawn by the seizing IO at the time of seizure and sent to the FSL, the application under Section 52A of the NDPS Act was filed much later on 29.10.2020, after a delay of over one and a half years, and was disposed of on 05.03.2021. However, the samples drawn during the Section 52A proceedings before the Magistrate were not sent to the FSL. As a result, the samples which could have constituted primary evidence were not subjected to forensic analysis.

9. In the case of Mohd. Muslim v. State (NCT of Delhi) SLP (Crl.) 5530/2022, while considering a bail application in an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, held that in the case of prolonged incarceration, conditional liberty would override the statutory embargo under Section 37 of the Act. In the present case the respondent was taken into custody on 13.03.2019 and was granted bail on 20.11.2023, hence the respondent was in custody for 4 years, 8 months and 7 days.

10. Similarly, in Jitender Jain vs. Crime Branch SLP (Crl.) NO. 8900/2022 inter alia held as under: “Xxx

3. Though it is a case of commercial quantity and allegations levelled against the petitioner are serious in nature, but having regards to the fact that he is in custody for 2 years and conclusion of trial will take time, we are inclined to release the petitioner on bail.

4. The petitioner is, accordingly, ordered to be released on bail, subject to his furnishing bail bonds to the satisfaction of the trial court."

11. A bare perusal of the case of Deepak Yadav Vs. State of U.P. Criminal Appeal No. 861/2022, makes it evident that bail can only be cancelled in the presence of supervening circumstances and not in a mechanical manner. The learned Sessions Judge has judiciously exercised discretion, considering the prolonged period of incarceration and the likelihood of delay in the conclusion of trial. There is no material on record to suggest that the Trial Court relied on irrelevant considerations or overlooked material facts, nor does the order appear to be perverse. Furthermore, there is nothing to indicate that the respondent has violated any condition of bail. Although there was a procedural lapse in the filing of the application under Section 52A of the NDPS Act and disposal of the seized contraband, the respondent should not be made to suffer for such irregularity, and the grant of bail was justified. Reliance can be placed on Rabi prakash (supra), Mohd. Muslim (supra) as well as Jitender Jain (supra).

12. In view of the above facts and circumstances, the present petition is dismissed.

RAVINDER DUDEJA, J. JULY 03, 2025