Mr. J.S. Kushwaha Kushwaha, Ms. Tanya Advs v. THE STATE GOVT. OF NCT OF DELHI

Judgment

1. The present application is filed seeking grant of regular bail in FIR No. 81/2022 dated 22.01.2022, registered at Police Station Mohan Garden for offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

2. Briefly stated, on 22.01.2022 at about 1:15 AM, a secret information was received by ASI Manoj Kumar, Police Station Mohan Garden, New Delhi, that a foreign national involved in supplying drugs in the area would be arriving between 1:45 AM and 2:00 AM near Tayal Plot, Mohan Garden for delivering a consignment of narcotics. Acting upon this information, a raiding team was constituted, and the same was duly recorded in the Daily Diary in purported compliance with Section 42 of the This is a digitally signed order. BAIL APPLN. 4385/2024

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 NDPS Act.

3. The raiding party reached the designated spot around 1:45 AM. At about 1:55 AM, one foreign national was seen arriving on a scooter bearing registration number DL-9SBX-2178, who was identified by the secret informer. The said person was intercepted and identified as Peter Dom Chima, a Nigerian national. After informing him of his legal rights under Section 50 of the NDPS Act, his search was conducted, which led to the recovery of 273 grams of heroin from the right pocket of his pants.

4. The contraband was seized, and the accused was arrested on the spot. Subsequent investigation revealed that the applicant was residing in India without any valid visa or documents.

5. Upon completion of the investigation, chargesheet was filed under Sections 21/25 of the NDPS Act, Section 14A of the Foreigners Act, 1946, and Sections 420/468/471 of the Indian Penal Code, 1860.

6. The learned counsel for the applicant submits that the applicant was arrested on 22.01.2022 and has been in custody since. He submits that the applicant has been falsely implicated in the present case and there are serious infirmities in the case of the prosecution. He submits that even though the purported recovery happened in a public place, there are no independent witnesses. He submits that no endeavour was made by the prosecution to photograph or videotape the recovery either.

7. He submits that the applicant was not served with a proper notice under Section 50 of the NDPS Act at the time of his arrest as such the word ‘nearest’ was not mentioned. As such, the recovery was conducted illegally, and the entire process of seizure deviated from the prescribed legal standards. This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27

8. He submits that there is no compliance with Section 42 of the NDPS Act since the statutory requirement of the said section is that the person who first receives information must reduce the same into writing and this obligation cannot be delegated.

9. Per contra, the learned Additional Public Prosecutor for the respondent vehemently opposed the grant of bail to the applicant and submits that the present case involves recovery of commercial quantity of contraband, and therefore, the rigours of Section 37 of the NDPS Act are attracted against the applicant.

10. He submits that the applicant has been residing in India without any valid documentation. He has committed a serious offence and poses a threat to the society. Analysis

11. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.

12. It is unequivocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfill the conditions stipulated in Section 37 of the NDPS Act. Section 37 of the NDPS Act reads as under: “37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (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.”

13. Firstly, the learned counsel for the applicant urges that the notice under Section 50 of the NDPS Act was defective, as it failed to mention the word ‘nearest’ Gazetted Officer or Magistrate, rendering the recovery illegal.

14. In the recent judgment of the Hon’ble Apex Court in State (NCT of Delhi) v. Mohd. Jabir : 2024 SCC OnLine SC 4374 it has been clarified that the purpose of the provision is to ensure fairness and transparency and that minor deviations in phrasing, absent any prejudice or denial of rights, are not sufficient to vitiate the process. The relevant portion of the aforesaid judgment is reproduced hereunder : “5. It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression “nearest” refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word “unnecessary delay” and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.”

15. In this context, the alleged deficiency in the notice and its effect on the validity of the search are assessed on the basis of This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 evidence led during the proceedings and no benefit can be given to the accused ay the stage of considering application seeking bail.

16. Secondly, the learned counsel for the applicant raised the issue that no independent witness was joined by the prosecution even though the applicant was apprehended on the basis of secret information. It is argued that no independent witnesses were associated by the prosecution and no photography or videography was done by the prosecution in the present case despite the applicant being apprehended in a public place.

17. Undoubtedly, the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses would thus not be prosecution’s case. Reliance on the testimonies of official witnesses is sufficient to secure conviction once it is established that the police witnesses have no animosity against the accused person so as to falsely implicate him. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials.

18. However, it cannot be denied that the lack of independent witnesses in some circumstances casts a shadow over the case of the prosecution.

19. This Court in the case of Bantu v. State Govt of NCT of Delhi: 2024: DHC: 5006 has observed that while the testimony of independent witness is sufficient to secure conviction if the same inspires confidence during the trial, however, lack of independent witnesses in certain cases can cast a doubt as to the credibility of the prosecution’s case. It was held that when the Investigating Agency had sufficient time to prepare before the This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 raid was conducted, not finding the public witness and lack of photography and videography in today’s time casts a doubt to the credibility of the evidence.

20. It is contended by the prosecution that the raid was conducted later at night and being a dark and deserted place, no public witness was found.

21. This Court in Bantu v. State Govt of NCT of Delhi (supra), noted that the Hon’ble Apex Court, way back in the year 2018 in Shafhi Mohd. v. State of H.P. : (2018) 5 SCC 311, after taking note of the technological advancements, had passed certain directions. The Hon’ble Apex Court had emphasized the role of audio-visual technology in enhancing the efficacy and transparency in the Police investigations.

22. This Court also noted that the procedure prescribed in NCB Handbook which has been adopted by the Delhi Police may be argued to be not binding, however, it cannot be denied that the same has been prescribed as the best and crucial practice for obtaining evidence in order to avoid the allegation in regard to foul play.

23. Hence, since no effort to photograph or videotape the recovery has been made by the prosecution in the present case to endorse the credibility of the recovery, the benefit, at this stage, cannot be denied to the accused specially when the accused has already spent substantiated period in custody.

24. Delay in trial and long period of incarceration is also an important factor which has to be kept in mind while considering the application for bail.

25. In the present case, the matter is at the stage of prosecution evidence. The applicant has been in custody since 22.01.2022. There is no likelihood of the trial being completed in the near This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 future.

26. It is trite that grant of bail on account of delay in trial and long period of incarceration cannot be said to be fettered by the embargo under Section 37 of the NDPS Act. The Hon’ble Apex Court, in the case of Mohd. Muslim v. State (NCT of Delhi) : 2023 SCC OnLine SC 352 has observed as under: “21….Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.

22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. recorded

23. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High in A Convict Prisoner v. State21 as “a radical Court 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.” the crime, more honour

24. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional criminal”22 (also see Donald Clemmer's ‘The Prison Community’ published in 194023). 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 well as loss of is paid This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.” (emphasis supplied)

27. The Hon’ble Apex Court in the case of Man Mandal & Anr. v. The State of West Bengal : SLP(CRL.) No. 8656/2023 had granted bail to the petitioner therein, in an FIR for offences under the NDPS Act, on the ground that the accused had been incarcerated for a period of almost two years and the trial was likely going to take a considerable amount of time.

28. The Hon’ble Apex Court in Rabi Prakash v. State of Odisha : 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein held as under : “4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” (emphasis supplied)

29. The object of jail is to secure the appearance of the accused during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment. delay in the completion of the trial. Various courts have recognized that prolonged incarceration undermines the right to life, and liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedence over the statutory restrictions under Section 37 of the This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 NDPS Act.

30. In view of the aforesaid, this Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the ground of absence of independent witnesses, no photography or videography of the recovery coupled with prolonged delay in trial.

31. The applicant is also stated to be of clean antecedents and is thus not likely to commit any offence whilst on bail.

32. The applicant is, therefore, directed to be released on bail (if not in custody in any other case) on furnishing a personal bond for a sum of ₹1,00,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever; b. The applicant shall under no circumstance leave the NCT of Delhi without the permission of the Trial Court; c. The applicant shall appear before the learned Trial Court as and when directed; d. The applicant shall, after his release, appear before the concerned IO/SHO once everyday; e. The applicant shall provide the address where he would be residing after his release to the concerned IO/SHO and shall not change the address without informing the concerned IO/SHO; This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27 f. The applicant is directed to submit his passport before the learned Trial Court; g. The applicant shall, upon his release, give his mobile number to the concerned IO and shall keep her mobile phone switched on at all times.

33. The State is directed to immediately communicate the present order to the concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 in order to take appropriate steps in accordance with the law.

34. In the event of there being any FIR/DD entry / complaint lodged against the applicant; it would be open to the respondent to seek redressal by filing an application seeking cancellation of bail.

35. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.

36. The bail application is allowed in the aforementioned terms.

37. All pending applications stand disposed of. APRIL 8, 2025 AMIT MAHAJAN, J This is a digitally signed order. BAIL APPLN. 4385/2024 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/04/2025 at 17:16:27