9911796707
TMI Blog2024 (7) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of their group. It is alleged that the accused (Mohd Munib) assisted the police in apprehending Gopal Dangi. It is alleged that on 12.09.2022, at about, 8:30PM, the police officials apprehended him near the Delhi Jal Board Office, DDA Janta Flats, Jasola, Delhi. It is further alleged that 7 packets of Ganja weighing 30.9 Kg were recovered from the scooty driven by Gopal Dangi. 6. Subsequently, accused - Gopal Dangi was arrested on 12.09.2022. 7. It is alleged that a few passers - by were also informed about the respective situations and were asked to join the police action, however, all of them refused and left without disclosing their names. 8. Upon completion of the investigation, the chargesheet in the present case was filed for offences under Sections 20/25 of the NDPS Act and Sections 39/192 of the Motor Vehicles Act,1988. 9. The applications seeking regular bail moved by the applicants were dismissed by the learned Trial Court by orders dated 22.05.2023 and 19.09.2023 respectively. Hence the present applications. 10. The learned counsel for the applicants submitted that the applicants have been falsely implicated in the present case. It is submitted that there are serious i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct cannot be kept in abeyance for consideration during the course of the trial. 15. Per contra, the learned Additional Standing Counsel strongly opposed the grant of any relief to the applicants. He submitted that commercial quantity of contraband has been recovered from the applicants in the present case and the rigours of Section 37 of the NDPS Act are thus attracted against the applicant. 16. He submitted that lack of strict adherence to the Standing Orders, delay in preferring the application under Section 52A of the NDPS Act or absence of independent witnesses are merely procedural irregularities and would not vitiate the trial. He relied on the judgment of the Hon'ble Apex Court in the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299 in this regard. 17. He submitted that it is trite law that merely because there is no independent witness, it cannot be said that the accused person has been falsely implicated, and the case of the prosecution cannot be rejected solely on the said ground. 18. He submitted that the defences of the applicants in regard to any procedural anomalies would be a matter of trial. Analysis 19. Arguments were heard in detail from the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned counsel for the applicants submitted that a liberal interpretation of Section 37 of the NDPS Act must be taken into account by the Court in the present case on the following grounds : a) Delay in filing application under Section 52A of the NDPS Act and delay in sending samples to FSL; b) Non-joinder of independent witnesses and no photography/videography; and c) Delay in trial. 24. This Court in the case of Sovraj v. State : 2024:DHC:5009, adverting to a number of judgments, has concurred with the view of a Coordinate Bench of this Court in Somdutt Singh @ Shivam v. Narcotics Control Bureau 2023:DHC:8550, and held that irregularity in procedure or belated compliance of the procedure under Section 52A of the NDPS Act ort Standing Order No.1/88 is not a ground for grant of bail. 25. Evidently, there is a delay of about 16 and 9 days respectively in compliance of the procedure under Section 52A of the NDPS Act. It is open to the applicants to press the aforesaid defence at the time of the trial. However, at this stage, the applicants have failed to establish a prima facie case as to how they have been prejudiced on account of the delayed compliance. In the opinion of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and transparency in the police investigations. 32. This Court also noted that realising the need of change in time, the Legislature has now passed the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS'), where the practice of photography and videography has now been made mandatory as part of the investigation. 33. This Court further noted that the procedure prescribed in NCB Handbook which has been adopted by the Delhi Police may be argued to be not binding, however, it cannot be denied that the same has been prescribed as the best and crucial practice for obtaining evidence in order to avoid the allegation in regard to foul play. 34. 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. Undoubtedly, the search in the present case was conducted at a busy public place. It is not the case of the prosecution that no CCTV were installed around the area where raid/search was conducted. It is also not the case that equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes. 24. There is a further danger of the prisoner turning to crime, as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal 22 (also see Donald Clemmer's 'The Prison Community' published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily. (emphasis supplied) 38. The Hon'ble Apex Court in Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein held as under : 4. As regard to the twin conditions contained in Section 37 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the prosecution, like Covid 19 pandemic and restricted function of the Courts, however, as long as they are not attributable to the applicant/accused, in my view, the applicant would be entitled to protection of his liberty under Article 21 of the Constitution of India. Delay in trial would, therefore, be one of the consideration that would weigh with the Court while considering as application filed by the accused for being released on bail. 43. From the foregoing, 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. 44. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
