Court’s Decision
The Delhi High Court granted regular bail to the applicant, observing that he had undergone nearly three years of pre-trial incarceration with only 3 of 18 prosecution witnesses examined. The Court held that since the alleged recovery of ganja was “only marginally above the threshold of commercial quantity,” a more nuanced application of Section 37 of the NDPS Act was warranted. It concluded that continued detention served no meaningful purpose, particularly as the petitioner had no prior criminal antecedents.
Facts
The case arose from an FIR registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, alleging that on 10 August 2022, the police, acting on a tip-off, apprehended the applicant near Todapur Village Road, Delhi. He was identified by a secret informer as someone involved in the supply of ganja in Delhi. Upon seeing the police, the applicant dropped his bags and attempted to flee but was apprehended. While his personal search revealed nothing incriminating, a white bag allegedly dropped by him contained two packets of ganja weighing 21.508 kg—slightly above the 20 kg threshold for commercial quantity.
Issues
The primary issues before the Court were:
- Whether the petitioner satisfied the conditions under Section 37(1)(b) of the NDPS Act for grant of bail;
- Whether the marginal excess of recovered quantity over the commercial threshold and prolonged incarceration warranted bail;
- Whether the lack of videographic evidence and independent witnesses undermined the prosecution’s case.
Petitioner’s Arguments
The petitioner contended that he had been falsely implicated and had remained in custody since 10 August 2022, with trial proceedings moving at an unreasonably slow pace. Only 3 out of 18 prosecution witnesses had been examined, and this delay was not attributable to the petitioner.
He relied on multiple precedents to support his claim:
- In Ashok Kumar @ Lala v. State Govt. of NCT of Delhi, the Delhi High Court granted bail where the recovery was marginally over the commercial quantity.
- In Gurprabh Singh @ Prince v. State of Punjab, bail was granted by the Punjab and Haryana High Court in a case involving 261 grams of Tramadol (above the 250-gram limit) as the accused was a first-time offender.
- Bantu v. State Govt. of NCT of Delhi emphasized the importance of videographic documentation in recovery.
- Sanjay v. State Govt. of NCT of Delhi and Pascal Ezeigbo @ Prince v. State Govt. of NCT of Delhi highlighted the impact of the absence of videography and independent witnesses in undermining the prosecution’s case.
- Tarkeshwar Singh @ Rakesh Singh and Najir Hussain were cited to show that prolonged incarceration could be a ground for bail.
- He also cited Man Mandal & Anr. v. State of West Bengal, where the Supreme Court granted bail due to prolonged incarceration and the unlikelihood of the trial concluding soon.
Additionally, he argued that the recovery lacked videographic or photographic proof, no independent witnesses were present, and the applicant had no criminal antecedents. He had been granted interim bail earlier and surrendered without violating any conditions.
Respondent’s Arguments
The State opposed the bail, asserting that the recovery of 21.508 kg of ganja attracted the stringent rigours of Section 37 of the NDPS Act. It argued that:
- The recovery was made from the conscious possession of the applicant.
- All procedural safeguards under Sections 42 and 50 of the NDPS Act were complied with.
- The petitioner was duly informed of his right to be searched before a Magistrate or Gazetted Officer.
- The seriousness of the offence, involving commercial quantity, barred bail under Section 37.
Analysis of the Law
Section 37 of the NDPS Act provides that bail shall not be granted unless the Court is satisfied that:
- There are reasonable grounds for believing the accused is not guilty;
- He is not likely to commit another offence while on bail.
However, the Court noted that in certain situations—such as marginal excess over the commercial threshold, prolonged incarceration, and slow trial progress—the strict bar under Section 37 could be tempered in the interest of justice.
Precedent Analysis
The Court relied on:
- Ashok Kumar @ Lala – marginal excess over threshold.
- Gurprabh Singh – bail for first-time offenders.
- Bantu, Sanjay, and Pascal Ezeigbo @ Prince – importance of videography and independent witnesses.
- Tarkeshwar Singh and Najir Hussain – bail due to prolonged custody.
- Man Mandal & Anr. – Supreme Court precedent for bail based on delay in trial.
These judgments cumulatively supported the petitioner’s position that prolonged detention, procedural infirmities, and marginal recovery can warrant bail.
Court’s Reasoning
The Court found that the recovery was only 1.5 kg above the 20 kg threshold and held that this did not warrant a blanket application of Section 37’s rigours. It observed:
“The alleged recovery is only marginally above the threshold of commercial quantity… a more nuanced consideration is required.”
The Court also emphasized that only 3 out of 18 prosecution witnesses had been examined in nearly 3 years, and this delay was not attributable to the petitioner.
Additionally, the applicant had no prior criminal history, had surrendered after interim bail without default, and the risk of tampering with evidence was illusory as the contraband was already in custody.
Conclusion
The Court allowed the bail application and ordered the applicant’s release on furnishing a bail bond and surety, subject to conditions imposed by the trial court. It clarified that any future offence would be a ground for bail cancellation.
Implications
This judgment reinforces the judicial approach that even in NDPS cases, especially where the alleged recovery is marginally above commercial quantity, the duration of custody and pace of trial can tilt the balance in favour of bail. It also highlights the importance of videography and independent witnesses in drug recoveries.
Cases Referred & Their Relevance
- Ashok Kumar @ Lala – Bail granted for marginal excess over commercial quantity.
- Gurprabh Singh @ Prince – Bail despite excess due to first-offender status.
- Bantu – Emphasized necessity of videography in drug recoveries.
- Sanjay – Absence of independent witnesses as a ground for bail.
- Pascal Ezeigbo @ Prince – Twin conditions under Section 37 not satisfied, bail granted.
- Tarkeshwar Singh @ Rakesh Singh, Najir Hussain – Bail granted for prolonged incarceration.
- Man Mandal & Anr. – Supreme Court endorsed bail due to delay in trial.
FAQs
Q1. Can bail be granted in NDPS cases involving commercial quantity?
Yes, if the quantity is marginally above the threshold and trial is unduly delayed, courts may consider granting bail despite Section 37.
Q2. Is videographic evidence necessary in drug recovery operations?
Though not mandatory, courts increasingly emphasize the need for videography to ensure transparency and reliability of the recovery process.
Q3. Does prolonged incarceration impact bail decisions in NDPS cases?
Yes. If a person remains in custody for years without significant progress in trial, courts may grant bail to prevent indefinite pre-trial detention.
