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TMI Blog2024 (7) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant. It is alleged that the applicant was moved to the parking lot shed where a search was conducted. It is alleged that no additional intoxicants were found on the applicant during the search. 5. It is alleged that the applicant admitted to bringing the contraband (Ganja) from Patna, Bihar to New Delhi by train and was waiting to deliver the same at Ghoda Wala Mandir, Raghubir Nagar. 6. It is alleged that the four different sized packets recovered from the sky-blue coloured trolley bag were equally mixed by ASI. It is alleged that the green coloured seeds and husks recovered from the bag were mixed and kept in two large white coloured polythene bags, each weighing 10 kg separately. It is alleged that the green-coloured husk and seed-like substances from the black coloured tote bag were thoroughly mixed in a large white coloured polythene and weighed, totalling 10 kg. It is alleged that the green leaf and seed-like material from the purple-coloured tote bag were thoroughly mixed in a large white coloured polythene and weighed, totalling 10 kg. It is alleged that the total weight of the recovered contraband was found to be 40 kg after the mixing and weighing process. 7. It is all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serving the proper protocol invalidates the evidence. He also relied on the case of Gopal Das v. NCB : Bail Appln. 3491/2020 wherein the Court had granted bail to the accused therein in similar circumstances and observed that mixing substances compromises the recovery. 16. He submitted that the samples of the contraband were drawn after the mixing of the substances from the eight packets that were allegedly recovered from the applicant. He submitted that the same is in teeth with the judgment by this Court in the case of Basant Rai v. State : Crl. Appeal No. 909/2005 and the Standing Order 1/88 dated 15.03.1988. 17. He submitted that all the witnesses cited in the chargesheet are police officials, and therefore, there are no chances of the applicant tampering with prosecution evidence if she is enlarged on bail. He further submitted that there is no likelihood of the applicant absconding or fleeing from justice. 18. Per contra, the Additional Public Prosecutor for the State opposed the bail application. He submitted that due procedure was followed as envisaged under the NDPS Act. 19. He submitted that commercial quantity of contraband is involved in the present case, whereby, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 26. 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. 27. The learned counsel for the applicant 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) Improper sampling by the prosecution as the substances from different parcels were mixed before the samples were drawn; b) Non-joinder of independent witnesses and no photography/videography; and c) Delay in trial. 28. It is true that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 36. 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. It is unclear as to why the police officers only requested passers-by to join the investigation instead of the government employees or shopkeepers who must have been available at the New Delhi Railway Station. 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. 37. This Court in Bantu v. State Govt of NCT of Delhi (supra), had noted that the Hon ble Apex Court, way back in the year 2018 in Shafhi Mohd. v. State of H.P. (supra), after taking note of the technological advancements, had passed certain directions. The Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country 20 . 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. State 21 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 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 1940 23 ). 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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. 47. A Coordinate Bench of this Court in Gurpreet Singh v State of NCT of Delhi : 2024:DHC:796, 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 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. 48. From the foregoing, ..... 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