2024 (7) TMI 1540 - HC - Indian Laws

Seeking grant of regular bail - recovery of Ganja - commercial quantity of contraband - procedural irregularities in the investigation - delay in filing the application under Section 52A of the NDPS Act and sending samples to FSL - 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. 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 three hours prior to the accused person ('Mohd Munib') being apprehended on 05.09.2022. Subsequently, on a disclosure given by the accused ('Mohd Munib') co-accused ('Gopal Dangi') was apprehended on 12.09.2022. It is peculiar that the Investigating Agency was unable to associate even a single public witness at the time, especially since the prosecution had prior secret information and the applicants were apprehended at a public place. Delay in trial and long period of incarceration is also an important factor which has to be kept in mind while considering the application for Bail - In the present case, the matter is at the stage of prosecution evidence. It is stated that only one witness has been partly examined out of the twenty- two listed prosecution witnesses. The applicant - Mohd. Munib has been in custody since 06.09.2022 and the applicant - Gopal Dangi has been in custody since 12.09.2022. There is no likelihood of the trial being completed in the near future. 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 - this Court is of the opinion that the applicants have made out a prima facie case for grant of bail on the grounds of absence of independent witnesses and prolonged delay in the trial. The applicants are, therefore, directed to be released on bail on furnishing a personal bond for a sum of Rs. 50,000/- each with two sureties of the like amount, subject to the satisfaction of the conditions imposed - bail application allowed.

Summary

Issues Involved:

1. Grant of regular bail under Section 439 of the CrPC and Section 36A(3) of the NDPS Act.
2. Procedural irregularities in the investigation, including delay in filing the application under Section 52A of the NDPS Act and sending samples to FSL.
3. Absence of independent witnesses and lack of photography/videography during the recovery.
4. Delay in trial and prolonged incarceration of the accused.

Issue-wise Detailed Analysis:

1. Grant of Regular Bail:

The judgment revolves around the application for regular bail under Section 439 of the CrPC and Section 36A(3) of the NDPS Act. The Court emphasized the conditions under Section 37 of the NDPS Act, which restricts bail for offences involving commercial quantities unless the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. The Court noted that the accused were charged with offences involving commercial quantities of contraband, thereby attracting the stringent conditions of Section 37.

2. Procedural Irregularities:

The applicants argued that there were procedural irregularities, including a delay in filing the application under Section 52A of the NDPS Act and sending samples to the FSL. The Court acknowledged the delay of 16 and 9 days, respectively, but stated that procedural irregularities or belated compliance with Section 52A are not grounds for granting bail. The Court highlighted that the applicants failed to demonstrate how they were prejudiced by the delay, and any observation regarding the veracity of the recovery would be premature at the bail stage.

3. Absence of Independent Witnesses and Lack of Photography/Videography:

The applicants contended that the absence of independent witnesses and lack of photography/videography during the recovery cast doubt on the prosecution's case. The Court recognized the importance of independent witnesses and technological evidence, as emphasized in previous judgments and guidelines. However, it concluded that while the absence of independent witnesses and lack of videography may be tested during the trial, they do not warrant bail at this stage. The Court noted that the search was conducted in a public place, and the prosecution had prior secret information, yet no public witness was associated, nor was CCTV footage procured.

4. Delay in Trial and Prolonged Incarceration:

The Court considered the delay in trial and prolonged incarceration as significant factors in deciding the bail application. It noted that the trial was at the stage of prosecution evidence, with only one witness partly examined out of twenty-two. The applicants had been in custody since September 2022, with no likelihood of the trial concluding soon. Citing precedents, the Court emphasized that undue delay in trial undermines the right to life and liberty under Article 21 of the Constitution, and conditional liberty must override statutory restrictions.

Conclusion:

The Court concluded that the applicants made a prima facie case for bail based on the absence of independent witnesses and prolonged delay in the trial. The applicants were found to have clean antecedents, and reasonable grounds existed to believe they were not likely to commit any offence while on bail. The Court directed the applicants to be released on bail with specific conditions to ensure compliance and prevent tampering with evidence. The judgment underscores the balance between procedural compliance, individual liberty, and the need for a fair trial.