Court’s Decision
The Delhi High Court granted regular bail to the applicant, from whom 1 kg of heroin (commercial quantity) was recovered, after nearly 4 years in custody, holding that the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) stood mitigated due to:
- Long incarceration,
- Slow pace of trial,
- Bail granted to similarly placed co-accused with larger recoveries,
- Non-challenge of those bail orders by the State.
The Court imposed a personal bond of ₹1 lakh with two sureties and conditions similar to those imposed upon co-accused previously granted bail.
Facts
The case arose from an FIR registered by the Special Cell, Delhi, under Sections 21/29 NDPS Act. On August 5, 2021, based on secret information, the police apprehended one Shahnawaj Hussain and Sachin, recovering 8 kg of heroin in total. Based on their disclosure statements, the present applicant and another co-accused were arrested the same day, with 1 kg heroin recovered from each.
The applicant has been in judicial custody since August 6, 2021, with charges framed in October 2023, but only 4 out of 27 witnesses examined to date, indicating slow trial progress.
Issues
- Whether the applicant should be granted bail under Section 37 NDPS Act despite recovery of commercial quantity of heroin.
- Whether parity with co-accused (from whom larger quantities were recovered but who were granted bail) applies to the applicant’s case.
- Whether prolonged incarceration and slow trial progression mitigate the statutory embargo under Section 37 NDPS Act.
Petitioner’s Arguments
The applicant argued:
- He has been in custody for nearly 4 years without prior criminal antecedents.
- Co-accused, from whom larger quantities (2 kg and 8 kg) were recovered, were granted regular bail on material procedural lapses, inconsistencies in mobile location data, and non-compliance with court directions.
- The State did not challenge those bail orders.
- The trial was proceeding slowly and would take considerable time to conclude.
- On parity grounds, the applicant should also be granted bail.
Respondent’s Arguments
The State opposed the bail, submitting:
- Recovery of 1 kg heroin is commercial quantity, attracting the statutory bar under Section 37 NDPS Act.
- However, it conceded that co-accused with larger recoveries had been granted bail a year ago, and the State did not challenge those bail orders.
Analysis of the Law
The Court noted:
- Section 37 NDPS Act imposes strict conditions for granting bail in cases involving commercial quantity, requiring the court to be satisfied that there are reasonable grounds the accused is not guilty and is unlikely to commit any offence while on bail.
- However, prolonged incarceration and slow trial progression can be grounds for granting bail even in NDPS cases.
- Parity with co-accused can be a valid consideration when similarly placed co-accused are granted bail, and the State has not appealed against those orders.
- The peculiar facts and circumstances of the case must be assessed to determine whether the rigours of Section 37 stand mitigated.
Precedent Analysis
The judgment referred to the bail orders of May 2, 2024, and July 5, 2024, granting bail to co-accused Sachin and Shahnawaj Hussain, where the trial court found:
- Material procedural lapses in the investigation.
- Non-compliance with court orders for providing mobile location data.
- Discrepancies in Cell ID data and unexplained facts regarding video footage and toll records.
- These factors created reasonable grounds to believe the accused were not guilty, allowing them to cross the bar of Section 37 NDPS Act.
The State’s failure to challenge these bail orders reinforced the parity argument in the present case.
Court’s Reasoning
The Court reasoned:
- The applicant was apprehended based only on co-accused disclosure statements, who themselves are now on bail.
- The applicant has no prior criminal antecedents and has been in custody for nearly 4 years, while the trial has been slow.
- Co-accused from whom larger quantities were recovered are on bail, unchallenged by the State, indicating a lack of consistency if the applicant is continued in custody.
- These factors mitigate the rigours of Section 37 NDPS Act, justifying grant of bail under the circumstances.
Conclusion
The Delhi High Court allowed the bail application, directing that the applicant be released on regular bail upon furnishing a personal bond of ₹1,00,000 with two sureties, subject to satisfaction of the trial court and on the same terms as imposed on co-accused.
The Court clarified that the observations made would not affect the merits of the case.
Implications
– Reinforces “long incarceration and slow trial” as factors mitigating Section 37 NDPS Act rigours.
– Reiterates parity principle when co-accused with larger recoveries are granted bail unchallenged by the State.
– Encourages State accountability and consistency in NDPS prosecution strategy.
– Highlights that disclosure statements alone cannot sustain prolonged detention without timely trial progression.
FAQs
1. Can bail be granted under NDPS Act for commercial quantity cases?
Yes, if prolonged incarceration, slow trial, and other factors create reasonable grounds under Section 37 NDPS Act, bail can be granted.
2. Does parity with co-accused matter in NDPS bail cases?
Yes, if similarly placed co-accused are granted bail and the State has not challenged it, parity can justify bail.
3. Does prolonged custody help in securing bail under NDPS Act?
Yes, prolonged custody with no prior antecedents and slow trials can mitigate the statutory bar under Section 37 NDPS Act.
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