2024 (7) TMI 1542 - HC - Indian Laws

Seeking grant of regular bail - recovery of commercial quantity of contraband (Ganja) - Applicability of rigors of Section 37 of the NDPS Act - 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 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 - A bald statement has been made, as stated in the chargesheet filed, that 4-5 passers-by were asked, however, they refused to join the investigation and left the spot citing legitimate compulsion related to journey. The recovery in the present case was effectuated at Exit Gate No.1 in front of Coolie Hall, Pahar Ganj Side, New Delhi Railway Station. In the present case, while the charges have been framed against the applicant, none of the witnesses have been examined yet. As noted above, the applicant has been in custody since 25.12.2021. There is no likelihood of the trial being completed in the near future.'The Hon ble Apex Court in Badsha SK. v. The State of West Bengal 2023 (9) TMI 1567 - SC ORDER , granted bail to the petitioner wherein who had been in custody for more than two years with the trial yet to begin. Similarly, in Man Mandal Anr. v. The State of West Bengal 2023 (9) TMI 1568 - SC ORDER 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. Thus, 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 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. 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 fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:
1. Legality of the search and seizure process.
2. Admissibility of evidence due to improper sampling.
3. Absence of independent witnesses during the recovery.
4. Delay in the trial and its impact on bail considerations.
5. Compliance with Section 37 of the NDPS Act concerning bail.

Issue-wise Detailed Analysis:

1. Legality of the Search and Seizure Process:

The primary issue revolved around the legality of the search and seizure process conducted by the police. The applicant argued that the search was conducted without adhering to the mandatory requirements prescribed under the NDPS Act, particularly the absence of independent witnesses and lack of photographic or videographic evidence. The court acknowledged that while the presence of independent witnesses is crucial, the absence thereof, especially in a crowded area like a railway station, raises questions about the credibility of the prosecution's case. The court noted that the police did not attempt to involve government employees or shopkeepers as witnesses, which could have bolstered the prosecution's case.

2. Admissibility of Evidence Due to Improper Sampling:

The applicant contended that the evidence was compromised due to improper sampling, as substances from different parcels were mixed before samples were drawn. The court referred to previous judgments, highlighting that minor procedural irregularities in sampling do not necessarily invalidate the evidence unless prejudice to the accused is demonstrated. The court concluded that the alleged violation in the mixing of substances and its impact on the applicant would be a matter for trial, as no prejudice was established at this stage.

3. Absence of Independent Witnesses During the Recovery:

The absence of independent witnesses was a significant issue raised by the applicant. The court observed that the lack of independent witnesses, especially in a public place, could cast doubt on the prosecution's case. The court referenced past judgments emphasizing the importance of independent witnesses and noted that the prosecution's failure to secure such witnesses or provide audio-visual evidence might benefit the accused at the bail stage.

4. Delay in the Trial and Its Impact on Bail Considerations:

The court considered the prolonged incarceration of the applicant since December 2021 and the delay in the trial as crucial factors. Citing various Supreme Court judgments, the court emphasized that undue delay in trial proceedings could justify granting bail, notwithstanding the stringent conditions under Section 37 of the NDPS Act. The court recognized that prolonged detention without trial undermines the fundamental right to life and liberty under Article 21 of the Constitution.

5. Compliance with Section 37 of the NDPS Act Concerning Bail:

The court reiterated the conditions under Section 37 of the NDPS Act, which necessitate the satisfaction of twin conditions for granting bail in cases involving commercial quantities of contraband. However, the court noted that these conditions do not preclude bail in cases of undue delay in trial. The court found that the applicant had made a prima facie case for bail based on the absence of independent witnesses and the prolonged delay in the trial, satisfying the requirements for bail under the NDPS Act.

Conclusion:

The court granted bail to the applicant, considering the absence of independent witnesses, the delay in the trial, and the applicant's clean antecedents. The applicant was directed to furnish a personal bond and adhere to specific conditions to ensure compliance with the trial process. The court clarified that the observations made were solely for the purpose of deciding the bail application and should not influence the trial's outcome.