2024 (7) TMI 1536 - HC - Indian Laws

Seeking grant of bail - illegal trafficking of Heroin - Improper sampling and mixing of substances - Delay in filing the application under Section 52A of the NDPS Act - Delay in trial and prolonged incarceration - HELD THAT - 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. The bar under Section 37 of the NDPS Act is attracted against the applicant as commercial quantity of contraband is involved in the present case. The issue in regard to improper sampling and any alleged non-compliance of the Standing Order No. 1/88 would be a matter of trial. No benefit can be given to the accused for the alleged non-compliance, at this stage, while considering the application for bail. In the present case, the charges have been framed against the applicant for the offences under Sections 29, 21 and 23 of the NDPS Act, which are punishable with a minimum punishment of 10 years and a minimum fine of ₹1,00,000/-. Admittedly, the applicant has spent almost three and a half years in custody, however, he has not undergone a minimum of five years of incarceration in the present case to be entitled to bail solely on the ground of delay in trial. It does not seem entirely implausible at this stage that the trial will not conclude within the next one and a half years - considering that the case is pending since the year 2021, this Court considers it apposite to request the learned Trial Court to expedite the trial. This Court is of the opinion that the applicant has not made out a prima facie case for grant of bail - the bail application is dismissed.

Summary

Issues Involved:
1. Improper sampling and mixing of substances.
2. Delay in filing the application under Section 52A of the NDPS Act.
3. Delay in trial and prolonged incarceration.
4. Applicability of Section 37 of the NDPS Act in granting bail.

Detailed Analysis:

1. Improper Sampling and Mixing of Substances:
The applicant argued that the contraband substances were improperly sampled, as substances from different parcels were mixed before samples were drawn. This was claimed to compromise the integrity of the evidence, relying on precedents such as Amani Fidel Chris v. NCB and Gopal Das v. NCB, where similar procedural anomalies led to bail being granted. However, the court noted that the mixing occurred only after the substances tested positive for Heroin using a Field Drug Test Kit. It was determined that any alleged procedural irregularities would be addressed during the trial, and no prima facie case of prejudice against the applicant was established at this stage.

2. Delay in Filing the Application under Section 52A of the NDPS Act:
The applicant highlighted a 13-day delay in filing the application for drawing samples under Section 52A of the NDPS Act, arguing that this delay violated procedural safeguards. The court acknowledged the delay but emphasized that such procedural issues should be evaluated during the trial. It was noted that the prosecution had not yet been given an opportunity to explain the delay, and thus, no immediate prejudice to the applicant was evident.

3. Delay in Trial and Prolonged Incarceration:
The applicant has been in custody since January 24, 2021, and argued that the delay in trial, with only two out of fourteen witnesses examined, justified bail. The applicant cited judgments like Rabi Prakash v. State of Odisha and Mohd. Muslim v. State (NCT of Delhi), where prolonged incarceration was a factor in granting bail. However, the court emphasized that while prolonged incarceration is relevant, it cannot be the sole ground for bail unless conditions under Section 436A of the CrPC are met. The applicant had not yet served half of the minimum sentence, which is a prerequisite for bail under Section 436A.

4. Applicability of Section 37 of the NDPS Act in Granting Bail:
The court reiterated that the NDPS Act imposes stringent conditions for bail under Section 37, especially for offenses involving commercial quantities of contraband. The applicant failed to demonstrate reasonable grounds for believing he was not guilty or that he would not commit an offense if released on bail. The court underscored that these conditions must be satisfied in addition to standard bail considerations. The applicant's reliance on procedural anomalies did not suffice to meet these requirements.

Conclusion:
The court concluded that the applicant did not make a prima facie case for bail, given the commercial quantity of contraband involved and the failure to satisfy the conditions under Section 37 of the NDPS Act. The court acknowledged the prolonged trial and requested the trial court to expedite proceedings but ultimately dismissed the bail application. Observations made were solely for the purpose of the bail decision and not indicative of the trial's outcome.