Delhi High Court Denies Bail in Narcotics Case: Failure to Meet Twin Conditions of Section 37 of NDPS Act – ”The threshold of Section 37 of NDPS Act, 1985 has not been met, no bail can be granted to the Petitioner at this stage”

Court’s Decision:

The Court dismissed the bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Section 439 of the Code of Criminal Procedure, 1973. The Court determined that the petitioner failed to satisfy the twin conditions outlined in Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, which impose stringent requirements for granting bail in drug-related offenses. Specifically, the petitioner did not demonstrate reasonable grounds for believing she was not guilty of the charge, nor could it be assured that she would not reoffend if granted bail.

Facts:

The petitioner was arrested on February 9, 2023, after a disclosure statement made by a co-accused, Ruby, named her as a participant in a drug trafficking operation. Ruby had been apprehended earlier and allegedly implicated the petitioner, suggesting that she was involved in selling narcotics from her residence. During the arrest, the petitioner was found in possession of 265 grams of heroin, leading to charges under Sections 8, 21, and 29 of the NDPS Act, 1985, which deal with the possession, trafficking, and conspiracy related to narcotic drugs.

The prosecution’s case centers around the heroin found in the petitioner’s possession, and a statement made by the co-accused, Ruby, who is said to have disclosed the involvement of the petitioner in the crime. The petitioner, however, argued that the evidence against her was insufficient, and she raised questions about the legality of the search and seizure process.

Issues:

1. Whether the Petitioner Satisfied the Conditions of Section 37 of the NDPS Act for Bail: The main issue was whether the petitioner fulfilled the dual requirements under Section 37 of the NDPS Act, which necessitates:
   • The Court being satisfied that there are reasonable grounds to believe the petitioner is not guilty of the offense.
   • The Court must also believe that the petitioner is not likely to commit further offenses if released on bail.
2. Validity of the Co-accused Confession: Another issue was whether the confession made by Ruby, the co-accused, could be considered strong enough evidence to implicate the petitioner, given the general legal caution around relying on confessions of co-accused persons.
3. Non-compliance with Search Procedures under Section 50 of the NDPS Act: A procedural issue raised by the petitioner was whether the search was conducted in violation of Section 50 of the NDPS Act, which mandates that the accused be informed of their right to have the search conducted before a Magistrate or a Gazetted Officer.

Petitioner’s Arguments:

The petitioner made several arguments in her favor:

1. Weakness of Co-accused Confession:
   • The petitioner argued that the case against her largely relied on the disclosure statement made by Ruby, a co-accused. She cited previous judgments (such as Indra Dalal v. State of Haryana and Gopal Sah v. State of Bihar) to argue that confessions made by co-accused are generally weak evidence unless supported by corroborating material.
2. Failure to Comply with Section 50 of the NDPS Act:
   • The petitioner contended that the search was not conducted in compliance with Section 50 of the NDPS Act, which provides the accused with the right to have the search conducted in the presence of a Magistrate or a Gazetted Officer. According to the petitioner, this non-compliance should render the search and seizure invalid.
3. Prolonged Incarceration and Delay in Trial:
   • The petitioner argued that she had been in custody since February 9, 2023, and that there had been significant delays in the trial process, which should entitle her to bail, referencing the case of Union of India v. K.A. Najeeb, where prolonged detention without trial was deemed a factor in granting bail.

Respondent’s Arguments:

The prosecution countered the petitioner’s claims by emphasizing:

1. Search Conducted in Accordance with the Law:
   • The prosecution argued that the notice under Section 50 of the NDPS Act was served to the petitioner, although she refused to have the search conducted in the presence of a Magistrate or Gazetted Officer. The prosecution contended that the recovery of 265 grams of heroin was legitimate and followed due procedure, even though the petitioner declined the offer to have the search witnessed by an independent authority.
2. Substantial Evidence of the Offense:
   • The prosecution highlighted the recovery of a significant quantity (265 grams) of heroin from the petitioner, which is categorized as a commercial quantity under the NDPS Act. This evidence, along with the confession from the co-accused, Ruby, was presented as sufficient to establish the offense.
3. Criminal Antecedents:
   • The prosecution also pointed out the petitioner’s involvement in other criminal cases, particularly under the Excise Acts, which suggested a history of involvement in similar offenses. This history of criminal activity was used to argue that the petitioner was likely to commit further crimes if released on bail.

Analysis of the Law:

The Court referenced key provisions of the NDPS Act and case law regarding the granting of bail in drug-related offenses, particularly Section 37, which imposes strict conditions for bail in cases involving narcotics. Section 37 requires the Court to be satisfied with:

• Reasonable Grounds for Believing the Petitioner is Not Guilty: The Court must consider whether the available evidence supports the petitioner’s claim of innocence. The petitioner’s arguments regarding procedural flaws and the weakness of co-accused confessions were insufficient to establish innocence.
• Likelihood of Reoffending: The petitioner’s criminal history and the nature of the offense made it difficult to conclude that the petitioner would not reoffend if granted bail.

Precedent Analysis:

The Court discussed several precedents to support its decision:

• Collector of Customs v. Ahmadalieva Nodira (2004) and State of Kerala v. Rajesh (2020) were cited to explain the significance of “reasonable grounds” in granting bail. The Court noted that reasonable grounds are not merely prima facie arguments but must involve substantial probable causes for believing that the accused is not guilty.
• Baldev Singh (1994) and Arif Khan @ Agha Khan (2018) were discussed to clarify that while violations of Section 50 of the NDPS Act may affect the credibility of the search, they do not automatically invalidate it. The procedural deficiencies were acknowledged but deemed insufficient to affect the bail decision at this stage.

Court’s Reasoning:

• Failure to Satisfy Twin Conditions: The Court reasoned that the petitioner had failed to satisfy the dual conditions of Section 37 of the NDPS Act. The recovery of a commercial quantity of heroin and the petitioner’s refusal to comply with procedural requirements under Section 50 cast doubt on her innocence.
• Procedural Deficiencies: While the petitioner raised concerns about the legality of the search, the Court determined that these issues could only be fully addressed at the trial stage. The Court did not find these procedural issues compelling enough to grant bail.
• Risk of Reoffending: The petitioner’s criminal antecedents and the serious nature of the offense suggested that she could potentially reoffend if released on bail.

Conclusion:

The Court concluded that the petitioner did not meet the necessary criteria under Section 37 of the NDPS Act, 1985. The petitioner’s criminal history, the substantial quantity of drugs recovered, and the failure to provide reasonable grounds for her innocence led the Court to dismiss the bail petition. The Court emphasized that, at this stage, the petitioner’s claims regarding procedural flaws were not sufficient to override the strong evidence against her.

Implications:

This judgment reinforces the high threshold required to obtain bail under the NDPS Act, particularly for cases involving commercial quantities of narcotics. It also highlights that procedural violations during arrest and search are significant but need to be considered at the trial stage rather than during the bail hearing. Furthermore, the case underscores the importance of an accused’s criminal antecedents in determining the likelihood of reoffending when considering bail under the NDPS Act. This decision serves as a reminder that the Court must balance the interests of justice with the protection of public safety when determining bail in serious drug offenses.

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