Court’s Decision
The Delhi High Court dismissed a regular bail application filed under Section 483 of BNSS read with Section 439 CrPC in an NDPS case involving commercial quantity of contraband. The Court held that the stringent conditions under Section 37 of the NDPS Act were not met, observing that “there is nothing on record at this stage from which it can be inferred that petitioner is not guilty of the offence in question,” and further noting his involvement in prior NDPS cases.
Facts
On 17 August 2023, the Crime Branch of Delhi Police received secret information that the accused and his associates were transporting poppy straw from Tapukada, Alwar, Rajasthan to Azadpur via Punjabi Bagh in a white taxi. A trap was laid at Punjabi Bagh Chowk, and the vehicle was intercepted at Sarai Pipalthala, where the petitioner was allegedly seen unloading sacks.
From the search, 10.860 kg of poppy straw was recovered from the petitioner, 11.870 kg from a co-accused, and 54.640 kg from a rented accommodation linked to the petitioner. An additional 20.518 kg was recovered from a co-accused’s residence in Rajasthan at the instance of the petitioner.
The petitioner and others disclosed that they procured the contraband from Tapukada and distributed it in Delhi. The motorcycle used for transport was registered in the petitioner’s name. UPI transactions and CDRs were used to corroborate his role.
Issues
- Whether the recovery made post-sunset without a warrant violates Section 42 of the NDPS Act.
- Whether the petitioner is entitled to bail under the parameters laid out in Section 37 of the NDPS Act.
- Whether bail should be granted on grounds of parity, as co-accused had been granted bail.
- Whether procedural lapses in the search and seizure invalidate the recovery.
Petitioner’s Arguments
The petitioner argued that the search was conducted between sunset and sunrise without a valid warrant, violating Section 42 of the NDPS Act. He relied on State of Punjab v. Balbir Singh [(1994) 3 SCC 299], to assert that such recovery was illegal. It was contended that the recovery was made in a crowded area without involving public witnesses or videography, thereby casting doubt on its credibility. The police had also failed to produce any evidence like a rent agreement to establish the connection of the recovered house with the petitioner. Further, it was submitted that two co-accused had been granted bail by the Coordinate Bench and hence, the petitioner was also entitled to bail on parity.
Respondent’s Arguments
The State strongly opposed the bail, arguing that the petitioner was caught red-handed with a commercial quantity of contraband. It was asserted that additional recovery from a rented house and another co-accused’s residence was made at his instance. The prosecution emphasized that CDRs showed the petitioner’s location in Tapukada on the relevant day and that he was in regular contact with the supplier. The prosecution also highlighted prior involvement of the petitioner in two other NDPS cases and contended that he is a habitual offender, thereby disentitling him to bail under Section 37. The State argued that Section 43, not Section 42, applied as the vehicle was in transit in a public place.
Analysis of the Law
The Court examined Sections 42 and 43 of the NDPS Act. It observed that Section 42 applies when the contraband is hidden in a building, conveyance, or enclosed place and mandates the recording of reasons for conducting a search post-sunset without a warrant. In contrast, Section 43 applies when a search is conducted in a public place or while the vehicle is in transit. Referring to the Punjab & Haryana High Court’s judgment in Mandeep Kaur v. State of Punjab (CRM-M-27760/2021), the Court noted that no warrant is needed for searches of vehicles in public places, even if conducted post-sunset, making Section 42 inapplicable here.
Precedent Analysis
- State of Punjab v. Balbir Singh [(1994) 3 SCC 299]: Cited by the petitioner to argue that non-compliance with Section 42 vitiates recovery. However, the Court distinguished it, holding that Section 43 applies here.
- Mandeep Kaur v. State of Punjab (P&H HC, CRM-M-27760/2021): Relied on by the Court to clarify that for vehicles in transit in public places, search warrants are not required even after sunset.
Court’s Reasoning
The Court reasoned that the recovery was made from a vehicle in transit in a public area and hence, Section 43 applied. It further noted that the recovery from the house was supported by the landlord’s statement that the premises were rented to the petitioner. Though public witnesses were absent and videography was not done, the Court said such omissions were irregularities, not illegalities, which placed a higher burden of scrutiny on the Court but did not vitiate the recovery.
The Court held that since the recovery involved commercial quantity, the bar under Section 37 was applicable. The Court found no reason to believe that the petitioner was not guilty or that he would not commit a similar offence if released. Moreover, since the petitioner was involved in two other NDPS cases, he could not be granted bail on parity with co-accused who had no prior record.
Conclusion
The bail application was dismissed. The Court held that the twin conditions under Section 37 of the NDPS Act were not satisfied and that there were reasonable grounds to presume guilt. The length of incarceration (since 17.08.2023) was not found to be excessive to warrant bail.
Implications
This judgment underscores the narrow scope for bail under Section 37 NDPS Act, especially in cases involving commercial quantities. It reiterates that procedural lapses such as absence of public witnesses or videography, while serious, do not automatically vitiate recovery unless mala fides or prejudice is shown. The ruling also reinforces the principle that habitual offenders cannot seek parity in bail decisions even if co-accused are released.
Also Read: Delhi High Court Grants Bail in NDPS Case Despite Commercial Quantity Recovery
