9911796707
TMI Blog2024 (2) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to be taken up for hearing in the immediate near future. The accused was, therefore, released on bail - in the present case, the applicant being in custody since 08.6.2021; and only 2 out of 22 witnesses having been examined in the trial, that that too only partially; coupled with the other factors as have been discussed in this judgment, the applicant is entitled to be released on bail on account of the delay in trial and there being no likelihood of it being concluded in the near future. Delay in sampling and compliance of Section 52A of the NDPS Act - HELD THAT:- The applicant has also made out a case for being released on bail on the grounds of delay in the sampling procedure being carried out under Section 52A of the NDPS Act. As noted hereinabove, the alleged recovery has been made from the applicant on 08.06.2021; the application under Section 52A of the NDPS Act was filed by the prosecution only on 30.07.2021; and the samples were drawn only on 04.09.2023, that is, with a delay of almost three months - In Kashif [ 2023 (5) TMI 1383 - DELHI HIGH COURT] , a Coordinate Bench of this Court considered the effect of delay in the sampling procedure, held that even a delay of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleges that on arrest, Ajay Lamba disclosed that he used to take Ganja from a person, namely Pramod Kumar Tandi @ Tunda, who does agriculture/business of Cannabis in Odisha. He further disclosed that he engaged the applicant herein and Akarm for transporting and supplying Cannabis/Ganja from Pramod Kumar Tandi @ Tunda. The CDRs. of the co-accused, that is the applicant, Ajay Lamba, Akarm, and Pramod Kumar Tandi @ Tunda, were analysed, which showed that they were talking to each other from a long time. It is alleged that the applicant herein also disclosed that his step-father-Suraj also used to supply Cannabis/Ganja at various places in Delhi. The prosecution also relied upon certain banking transactions between the co-accused. It is alleged that as Suraj, Akarm, and Pramod Kumar Tandi @ Tunda are absconding, they have been declared as Proclaimed Offenders. 4. Charge-sheet was filed against the applicant and the co-accused Ajay Lamba, on 21.10.2021, under Sections 20/29 of the NDPS Act. A Supplementary Charge-Sheet, placing the FSL report, has also been filed and charges have been framed. Examination-in-Chief of two witnesses is being recorded. Submissions of the learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamir Ali v. Narcotics Control Bureau, 2023 SCC OnLine Del 3015, he submits that this delay also entitles the applicant to be released on bail. Submissions of the learned APP 8. On the other hand, the learned APP submits that Section 37 of the NDPS Act is an exception to the general principle of law, and where the offence is in relation to a commercial quantity, the accused can be released on bail only if the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while being released on bail. He submits that the offence under the NDPS Act are very serious and affect the entire society including lives of a number of persons. Stringent provisions have therefore, been made for releasing the accused on bail. He submits that Section 37 of the NDPS Act cannot be given a liberal interpretation on the justification that it affects the personal liberty of a citizen who is yet to be tried. In support he places reliance on the judgments of the Supreme Court in Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705; Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar, (2001) 2 SCC 562; Bipin S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused/appellant must satisfy the conditions as stipulated in Section 37 of the NDPS Act. There can also be no dispute that keeping in view the nature of offence, there is no occasion for applying the more liberal principles for grant of bail to the accused under the NDPS Act where the offence involves commercial quantity. Error in procedure of sampling: 14. In the present case, however, as is evident from the case of the prosecution itself, 13 packets allegedly containing Cannabis/Ganja were recovered from the car driven by the applicant. The contents of these 13 packets was mixed together to form a uniform whole before drawing the samples. Recently, this Court in its judgment in Sandeep @ Chiku v. State (NCT of Delhi), Neutral Citation No. 2024:DHC:528, in similar circumstances, on analysing the prior judgments on the issue, has held as under:- 18. A reading of the Standing Order No. 1/89 would show that all packages/containers are to be serially numbered and kept in lots for sampling. In cases where more than one package/container is seized, it is advisable to draw one sample (in duplicate) from each of such packets/containers. Clause 2.5 of the Standing Order, however, stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-condition for release on bail as prescribed in Section 37 of the Act. It is settled law that when a thing is prescribed to be done in a particular manner, it must be done in that manner or not at all. As the manner of sampling has been prescribed in the above two Standing Orders, non-compliance thereof would give rise to reasonable grounds for believing that the accused is not guilty of the offence alleged against him based on the alleged seizure and sampling. 15. In the present case, therefore, as there is a non-compliance with the procedure prescribed for sampling, the applicant is entitled to be released on bail. Delay in trial: 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. 13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest-as observed in Vaman Narain Ghiya v. State of Rajasthan ( the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice : even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to-in cases when accused of offences enacted under special laws-be balanced against the public interest. 20. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 (also see Donald Clemmer's 'The Prison Community' published in 1940). 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. 18. In Rabi Prakash (Supra), the Supreme Court reiterated the above principles, as under:- 4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es having been examined in the trial, that that too only partially; coupled with the other factors as have been discussed in this judgment, the applicant is entitled to be released on bail on account of the delay in trial and there being no likelihood of it being concluded in the near future. Delay in sampling and compliance of Section 52A of the NDPS Act: 25. The applicant has also made out a case for being released on bail on the grounds of delay in the sampling procedure being carried out under Section 52A of the NDPS Act. As noted hereinabove, the alleged recovery has been made from the applicant on 08.06.2021; the application under Section 52A of the NDPS Act was filed by the prosecution only on 30.07.2021; and the samples were drawn only on 04.09.2023, that is, with a delay of almost three months. 26. In Kashif (Supra), a Coordinate Bench of this Court considered the effect of delay in the sampling procedure, held that even a delay of one and a half months, as was the case therein, raises a doubt sufficient enough to entitle the accused to be released on bail. The Court observed as under:- 24. Hence, I am of the view that non-compliance of section 52A within a reasonable time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accrue to the Applicant. 32. The application by the respondent under section 52A was filed after a delay of 51 days. At that time, the applicant did not object. However, the same being a legal objection can be raised at any stage. 27. The same Bench followed its above view in Tamir Ali (supra). CONCLUSION:- 28. In view of the above, in my opinion, the applicant has been able to make out a case for being released on bail on application of the test prescribed under Section 37 of the NDPS Act. 29. Accordingly, it is directed that the applicant be released on bail in FIR No. 0285/2021 registered at Police Station: Sagarpur, South-West District, Delhi, under Sections 20/61/85 of NDPS Act in SC No. 420/2022 on furnishing a personal bond in the sum of Rs. 50,000/-with one local surety, each, of the like amount, subject to the satisfaction of the Ld. Trial Court, and further subject to the following conditions: i. The Applicant will not leave the country without the prior permission of the Ld. Trial Court. ii. The Applicant shall provide his permanent address to the Ld. Trial Court. The applicant shall also intimate the Court, by way of an affidavit, and to the IO regarding any change in h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
