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TMI Blog2024 (7) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... f the NDPS Act - HELD THAT:- The accusation in the present case is with regard to the recovery of commercial quantity of contraband. Once the rigours of Section 37 of the NDPS Act are attracted, as provided under the Section, the Court can grant bail only when the twin conditions stipulated in Section 37(1)(b) of the NDPS Act are satisfied in addition to the usual requirements for the grant of bail (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; and (2) That the person is not likely to commit any offence while on bail. Delay in filing application under Section 52A of the NDPS Act delay in sending samples to FSL - HELD THAT:- In the present case, the applicant was arrested on 18.02.2021 and the application for sampling was filed under Section 52A of the NDPS Act before the learned Magistrate on 09.04.2021. The order for sampling was passed by the learned Magistrate on 22.04.2021. The samples drawn on spot were sent to FSL for report on 01.04.2021 and the samples drawn before the learned Magistrate were sent to FSL on 30.04.2021. Scope of Section 52A of the NDPS Act - HELD THAT:- The purpose of incorporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant to press the aforesaid defence at the time of the trial. However, at this stage, the applicant has failed to establish a prima facie case as to how he has been prejudiced on account of the delayed compliance. In the opinion of this Court, any observation as to the veracity of the recovery on account of delay to grant bail to the applicant would be premature. Improper Sampling: Non-Compliance Of Standing Order No. 1/88 - HELD THAT:- The substantial compliance of the Standing Orders is a requirement of law and is to be insisted upon to maintain the sanctity of the samples of the seized contraband - the provision of Section 52A of the NDPS Act applies in regard to the disposal of the seized contraband. The manner of mixing the samples is provided for the purpose of filing an application under Section 52A of the NDPS Act and for the disposal of the contraband. Section 52A of the NDPS Act prescribes the procedure for disposal of seized narcotic drugs and psychotropic substances and the same, in no manner, lays down the procedure for search of the accused and the resultant seizure of the contraband. As discussed above, the Standing Orders issued by the Government from time to time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to associate even a single public witness in the same time, especially since the prosecution had prior secret information and the applicant and coaccused were apprehended at a public place. Thus, while it is true that the effort, if any, made by the prosecution to have the search conducted in the presence of the independent witnesses would be tested during the course of trial and the same may not be fatal to the case of the prosecution, however, the benefit, at this stage, cannot be denied to the accused. Delay In Trial - HELD THAT:- It is trite law that grant of bail on account of delay in trial cannot be said to be fettered by the embargo under Section 37 of the NDPS Act - 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. In the present case, the trial is likely going to take long. Speedy trial in such circumstances does not seem to be a possibility. The applicant cannot be made to spend the entire period of trial in custody especially when the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded on 16.02.2021. A notice under Section 50 of the NDPS Act was served upon the applicant. It is alleged that the applicant disclosed that he had Charas in his bag. On searching the bag of the applicant, 10 bricks total weighing 4.396 kg of Charas were found. It is alleged that the applicant disclosed that he along with the co-accused had brought 16 kg of Charas on 15.02.2021 from Nepal. 4. Upon completion of the investigation, the chargesheet in the present case was filed for offences against the applicant and the coaccused, for offence under Section 20 of the NDPS Act. 5. The alleged recovery is of commercial quantity of contraband. 6. The learned Trial Court dismissed the regular bail application moved by the applicant vide order dated 12.01.2022, hence the present application. SUBMISSIONS ON BEHALF OF THE OF THE APPLICANT 7. The learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. He submits that there are serious infirmities in the case of the prosecution. He submitted that even though the purported recovery happened in a public place, there are no independent witnesses. 8. He submitted that there is a delay in sendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein after considering the factum of delay in filing of application under Section 52A of the NDPS Act. He argued that it has been held in the said cases that the benefit of such violation will accrue to the accused person at the time of consideration of bail. 14. He submitted that the applicant has satisfied the bar under Section 37(1)(b)(ii) of NDPS Act of establishing reasonable grounds for believing that he is not guilty of such offence. 15. He submitted that the applicant has been in custody for more than 3 years and that there is no possibility of the applicant influencing the witnesses. He submitted that applicant has clean antecedents and deep roots in the society. 16. He submitted that the matter is still at the stage of prosecution evidence. He relied upon the observations of the Hon ble Supreme Court in Mohd. Muslim v. State (NCT of Delhi) : 2023 SCC OnLine SC 352 to submit that grant of bail is not fettered by Section 37 of the NDPS Act in case of undue delay in trial. SUBMISSIONS ON BEHALF OF THE PROSECUTION 17. Per contra, the Additional Standing Counsel for the State opposed the bail application. He submitted that the case pertains to recovery of commercial quantity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfill the conditions stipulated in Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under: 37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d drugs. The relevant portion of the said judgement is reproduced hereunder: 15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. (emphasis supplied) 33. From the marginal note of Section 52A of the NDPS Act, it is evident that the said provision exclusively deals with disposal of the seized narcotic drugs and psychotropic substances. 34. Section 52A of the NDPS Act deals with how the contraband is to be disposed of as per the procedure prescribed under the said section. However, where the contraband has not been disposed but is available during the course of trial, Section 52A of the NDPS Act will have no application. 35. Thus, it is clear that the provision of Section 52A of the NDPS is mandatory and is to be duly complied with before disposal/destruction of the contraband. The same also makes it clear that it is a safeguard against unruly practices to prevent substitution of the contraband which could prejudice the accused person. 36. It is not disputed that in any trial under the NDPS Act, a contraband itself is the primary piece of evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. (emphasis supplied) 42. The Hon ble Apex Court in the case of Union of India v. Jarooparam : (2018) 4 SCC 334 observed as under: 9. From the above proceedings, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff as also the samples sealed as usual were handed over physically to the Investigating Officer Harvinder Singh (PW 6). Also the trial court in its judgment specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding. The trial court more specifically instructed to put a note with red ink on the front page of the record for its safe custody . In such a situation, it assumes importance that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of secondary evidence and cannot be treated as primary evidence under law. From a holistic reading of section 52A of the NDPS Act, it is evident that it is neither the intention of the legislature nor a requirement under the section to treat the said certificate only as primary evidence. 45. Thus, the proof of contraband, which is before the court, is not dependent upon the application for its disposal. Even otherwise in the aforesaid judgment of S tate of Punjab v. Makhan Chand : (2004) 3 SCC 453 , the Hon ble Supreme Court has held that the same will not vitiate the trial. 46. Although Section 52A of the NDPS Act says that the certificate given by the Magistrate will be primary evidence, it indicates that the prosecution is not precluded from leading secondary evidence under the Indian Evidence Act, 1872 in the absence of primary evidence. 47. In the case of Kallu Khan v. State of Rajasthan : (2021) 19 SCC 197, the Hon ble Supreme Court relied upon the judgment of Than Kunwar v. State of Haryana : (2020) 5 SCC 260, where it was observed that if the seizure is otherwise proved and the samples taken from the contraband material are kept intact and the report of the FSL show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been exhibited in the Trial Court. On being asked, it was stated that even though the application was filed before the Magistrate but the contraband seized in the present case is still available in the malkhana. In the facts of the present case, reliance by the applicant on Section 52A of the NDPS Act does not advance his case as the contraband is yet to be disposed of. 53. As held by the Hon ble Apex Court in Mohammed Khalid and another v. The State of Telangana (supra), when the contraband is not available as an exhibit, the absence of a certificate under Section 52A of the NDPS Act can be fatal to the case of the prosecution since the very primary evidence to prove the recovery of the contraband is not available. 54. It is also relevant to note that the Hon ble Apex Court in State of Punjab v. Makhan Chand (supra) had held that Section 52A of the NDPS Act only deals with the disposal of seized narcotic drugs and psychotropic substances and the certificate issued by the Magistrate is to be treated as primary evidence in respect of the offence in terms of Section 52A(2) of the NDPS Act. It was also held that Section 52A(1) of the NDPS Act does not lay down the procedure for sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance of section 52A within a reasonable time gives rise to the apprehension that sample could have been tampered with and in case of a wrongly drawn sample, the benefit of doubt has to accrue to the accused. The prosecuting agency has to prove at the time of trial that the sample was immune from tampering. 25. In the present case, the sample was kept in the custody of the prosecuting agency for more than one and a half month, thus, raising doubt with regards to tampering of the same. 26. Another reason which persuades me to take this view is that once the Apex Court has held in Mohanlal (supra) that the application under 52A has to be made without any undue delay, there should not be any reason for delaying the filing of application. 27. The application for sample collection under section 52A is not a technical application wherein elaborate reasons, principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application has to be moved at the earliest and in case, the same has not been moved, the reasons for delay must be explained by the authorities. Reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of trial and is not fatal. 58. As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time. 59. A Coordinate Bench of this Court in the case of Rishi Dev @ Onkar Singh v. State (Delhi Admn.): 2008:DHC:1513, held that the delay in sending samples to FSL is to be properly explained by the prosecution. It was also observed that the said reason should be evident from the record itself. The relevant portion of the aforementioned judgement reads as under: 20. The delay in sending samples to the CFSL has to be properly explained by the prosecution and further, such explanation can be accepted only where the prosecution shows that it made a genuine attempt to send the sample to the CFSL forthwith and that because of the excessive workload of the CFSL, the sample was returned and was unable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of sampling in the present case. It is contended by the applicant that the law on drawing of samples as expounded in Standing Order No. 1/88 has been contravened by the prosecution. The relevant portion of Standing Order No. 1/88 is stipulated hereunder: 1.4 If the drugs seized are found in packages/containers the same should be serially numbered for purposes of identification. In case the drugs are found in loose form the same should be arranged to be packed in unit containers of uniform size and serial numbers should be assigned to each package/container. Besides the serial number the gross and net weight, particular of the drug and the date of seizure should invariably be indicated on the packages. In case sufficient space is not available for recording the above information on the package, a Card Board label, should be affixed with a seal of the seizing officer and on this Card Board label, the above details should be recorded. 1.5 Place and time of drawal of sample Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-I, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1,2,3,4 and so on (emphasis supplied) 66. The applicant is alleging non-compliance of standard encapsulated in paragraph 1.7(a) of the Standing Order No. 1/88. The same provides that it is advisable to draw a sample from each packages/container in case of seizure of multiple packages/containers. 67. In the present case only 2 samples were taken out from the 23 bricks (3 red ice bricks; 6 rajdhani bricks; and 14 bricks with nothing written on them) recovered from co-accused Barun and 10 bricks (3 bricks with mato written on them; and 7 bricks with brown written on them) recovered from the applicant. It is the case of the applicant that the sample ought to have been taken from each type of brick that was recovered from the accused persons and five samples should have been sent to FSL- (1) one from the 3 red ice bricks; (2) one from the 6 rajdhani bricks; (3) one from 14 bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackages/containers/except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6. Whereafter making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching will be necessary and no sample need to be drawn. 2.7. If such remainders are more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such a reminder package/container. 2.8. While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample are in equal quantity is taken from a package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 417, observed as under: 91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution. (emphasis supplied) 72. The Hon ble Apex Court in the case of Khet Singh v. Union of India: (2002) 4 SCC 380 had observed that the standing instructions are intended to guide the officers to ensure fair investigation. The relevant portion of the same is reproduced hereunder: 10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra v. Natwarlal Damodardas Soni [(1980) 4 SCC 669 : 1981 SCC (Cri) 98] it was held that even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials. 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence. (emphasis supplied) 73. From the aforesaid judgements it is clear that substantial compliance of the Standing Orders is a requirement of law and is to be insisted upon to maintain the sanctity of the samples of the seized contraband. 74. Another aspect that is relevant to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mixed and two samples of 250 grams each were taken out. The remaining contraband weighing 69.5 kgs were sealed in two bags and the samples were sent to Forensic Science Laboratory for examination. It was contended on behalf of the appellant that the procedure followed by the concerned seizing officials was irregular and the alleged contraband could not be mixed and the samples taken thereafter. It was contended that since the punishment is based on the quantity of contraband recovered, mixing of substances from two bags was unacceptable. The said contention was rejected. The Court held that merely because different punishments have been prescribed depending on quantity of the contraband, the same has not caused any prejudice to the appellant. The Court reasoned that even after taking two samples of 250 grams each, 69.5 kgs of contraband was still available. 58. In Amani Fidel Chris (supra), four brown colour packets were allegedly recovered. The said packets contained powdery substances, which on being tested, yielded a positive result for heroin. The substances were then mixed properly and weighed with the help of an electronic machine and it was found that the same weighed 1.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d substance and rest 6 packets did not have any contraband; though all maybe of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. Therefore, the process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative. 60. In Edward Khimani Kamau (supra), a Coordinate Bench of this Court rejected the procedure where the substance found in nine packets was transferred into one packet and two samples were drawn from the same. The Court held that it could not be ascertained that all nine packets contained heroin. 61. In Charlse Howell @ Abel Kom (supra), the NCB had allegedly recovered 330 grams of heroin. The powder recovered was packed in 166 polythene strips, which were concealed in the laces/hem of two lehengas. The concealed powder from the 166 strips was collected in a transparent polythene and on weighing, it was found to be 330 grams. Two samples of five grams were drawn and pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is pointed out that a Coordinate Bench of this Court have extended the benefit of non-compliance of the Standing Orders to the accused therein and granted bail in the cases of Laxman Thakur v. State (Govt. of NCT of Delhi) (supra) and Kashif v. Narcotics Control Bureau (supra). It is noted in the aforesaid cases that once it is noted that the Standing Instruction 1/88 is a requirement of law as held by the Hon ble Apex Court in Union of India v. Bal Mukund (supra), the non-compliance of the same would cause serious prejudice to the applicant. It is observed that once the collection of the sample is held to be faulty, the rigours of Section 37 of the NDPS Act would not be applicable. 79. It is pertinent to note that in Laxman Thakur v. State (Govt. of NCT of Delhi) (supra) and Kashif v. Narcotics Control Bureau (supra), the Court had placed reliance on the judgments in criminal appeals, that is, Santini Simone v. Department of Customs (supra) and Union of India v. Bal Mukund (supra). 80. The applicant also placed reliance on the judgment in the case of Ram Bharose v. State (Govt. of NCT of Delhi) : Bail Appln. 1623/2022 where this Court granted bail to the accused therein as dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly held that in a situation of improper sampling, the onus is on the prosecution to establish that the seized substance is the contraband and in the absence of proper procedure being followed, the recovery would be deemed suspicious. The Courts have noted the irregularity in the procedure and discrepancies in the case of the prosecution to hold that the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. 88. The said question, in the opinion of this Court, can only be determined after the conclusion of the trial and it would be premature to comment on the same while considering the application for bail. 89. The second threshold under Section 37 of the NDPS Act which provides for grant of bail includes the hurdle of the Court having reasonable ground to believe that the applicant has not committed the offence. While the prosecution cannot be given undulated power where their version is treated as the gospel truth, unless ancillary facts suggest suspicious activity or tampering with the contraband, at the stage of consideration of bail, the benefit of an alleged procedural anomaly would not entitle the applicant to bail. 90. As noted above, Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include passers-by in the investigation, however, they left as well. It is stated in the FIR that no notice could be served to the said individuals due to lack of time. Around 11 PM, the co-accused was spotted and subsequently apprehended. Subsequently, the applicant was apprehended at the instance of the co-accused. 97. This Court in the case of Bantu v. State Govt of NCT of Delhi: 2024: DHC: 5006 has observed that while the testimony of independent witness is sufficient to secure conviction if the same inspires confidence during the trial, however, lack of independent witnesses in certain cases can cast a doubt as to the credibility of the prosecution s case. 98. It was held that when the Investigating Agency had sufficient time to prepare before the raid was conducted, not finding the public witness and lack of photography and videography in today s time casts a doubt to the credibility of the evidence. 99. 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 two hours prior to the co-accused being apprehended. It is pecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 country20. 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. State21 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 918, the Hon ble Apex Court released the petitioner therein on bail, and observed as under: 3. It appears that some of the occupants of the Honda City‟ Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed. 110. A Coordinate Bench of this Court in Gurpreet Singh v State of NCT of Delhi (supra), considered the effect of delay and observed as under: 16. In addition to the above, only 2 (two) out of 22 witnesses have been examined by the prosecution, and that too partially, though more than three and a half years have passed since the arrest of the applicant. It may be true that the reason for the delay in the conclusion of the trial may be for various factors, may be not even attributable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following conditions: a. The applicant shall join and cooperate with the investigation as and when directed by the IO; b. The applicant will not leave the boundaries of Delhi without prior permission of the Court, and will deposit his passport with the learned Trial Court; c. The applicant shall provide the details of his permanent address to the learned Trial Court and intimate the Court, by way of an affidavit, as well as the IO about any change in his residential address; d. The applicant shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times; e. The applicant shall appear before the learned Trial Court on every date of hearing; f. The applicant shall, after his release, appear before the concerned IO/SHO once in every week; g. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever; h. The learned Trial Court is directed to ensure that the certificate of assurance, from the Embassy/ High Commission of the applicant s native country, that is, Nepal, that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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