Recently, the Delhi High Court denied the petitioner bail in a case under the NDPS Act, citing non-compliance with Section 37 conditions. The petitioner, arrested in April 2022 during a raid where 602 grams of heroin were seized, sought relief due to prolonged custody.
The Court emphasized that while procedural safeguards must be followed, technicalities should not allow offenders to escape justice.
HC Bench highlighted the delayed submission of evidence to the Forensic Science Laboratory (FSL), the absence of independent witnesses, and the petitioner’s prolonged detention but left open the option for the petitioner to reapply for bail if the trial continues to be delayed.
Brief Facts:
The petitioner seeks regular bail in a case filed under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 468/471 of the Indian Penal Code, 1860 and Section 14 of the Foreigner Act, 1946 at PS Tilak Nagar. The petitioner has been in custody since early April 2022, following a raid prompted by secret information about heroin supply. During the operation, the petitioner was identified and attempted to flee, discarding a red pouch that contained 602 grams of heroin. The police seized the pouch, and the petitioner was informed of his legal rights. A personal search was informed of his legal rights. A personal search yielded no further evidence. Following the arrest, samples of the seized drugs were sent for expert analysis, and the trial is currently underway, with several witnesses having been examined.
Contention of Petitioner:
The Counsel for the petitioner contended that the alleged recovery from the pouch that the petitioner threw cannot be deemed valid due to the absence of independent witnesses and CCTV footage, despite the incident occurring in a public area. Furthermore, there was no service of notice under Section 50 of the NDPS Act prior to the search, as supported by the judgment in ‘Bantu v. State of Govt. of NCT of Delhi’. The non-compliance with Section 50 was emphasized by referencing the Supreme Court’s decision in ‘Union of India v Shah Alam’, which established that the search process must be unified and cannot be divided for compliance. The petitioner highlighted his incarceration for over two years, with only 8 of 23 witnesses examined, arguing for bail based on his clean past antecedents, cited in ‘Mohd. Muslim v. State of NCT of Delhi’.
Further, it was asserted by the counsel that the contraband seized was forwarded to the FSL after four days, violating the 72-hour dispatch requirement outlined in Standing Order 1/88 as referenced in Noor Aga v. State of Punjab. Discrepancies in the prosecution’s case were noted, particularly concerning the Stock Register, where witness PW-6 indicated inconsistencies regarding the items carried by the raiding team. The prosecution also failed to provide critical evidence, such as Call Detail Records (CDR) or mobile extraction reports to substantiate claims of communication or location, warranting a negative inference against the prosecution’s case. The council concluded that the notice issued did not comply with the language and requirements of Section 50 NDPS Act regarding the designation of the ‘nearest person, as highlighted in ‘Mohd. Jabir v State of NCT of Delhi’.
Contention of Respondent:
The Counsel for the State argued that the petitioner’s reliance on Shah Alam (Supra) was misplaced, pointing out the Supreme Court’s ruling in ‘Ranjan Kumar Chadha v. State of Himachal Pradesh’, which followed ‘State of Himachal Pradesh v. Pawan Kumar’. In these cases, it was held that compliance with Section 50 of the NDPS Act is not necessary when the recovery is made from a bag. The Counsel further contended that the raid was conducted promptly, and the application under Section 52A of the NDPS Act was promptly filed the next day. He argued that there was no violation of Standing Order 1/88, as the order serves as a guideline and the tehrir indicated the presence of a weighing machine during the operation.
Observation of the Court:
The Court observed that the compliance with procedural safeguards under the NDPS Act, highlighted that strict adherence to technicalities should not obstruct justice, particularly in cases involving serious offences. The Court remarked that “nefarious activities should not go scot-free on technical pleas which come handy to their advantage in a fraction of second by slight movement of the baggage, being placed to any part of their body, which baggage may contain the incriminating article”.
Regarding the absence of independent witnesses or videography during the seizure, the court referred to the Supreme Court’s ruling in ‘Jagwinder Singh’ which clarified that the law does not require only independent witnesses to prove charges under the NDPS Act. Procedural compliance with arrest, seizure, and recovery was deemed sufficient. Further, the submission of the seized contraband to the Forensic Science Laboratory was delayed beyond the 72 hour limit which violated the provisions of Standing order 1/88. This procedural lapse raised concerns about the proper handling of the evidence. The Court observed, “Submission of the seized contraband to the FSL not within 72 hours was therefore in violation of Standing Order 1/88.
The Court also noted the prolonged custody of the petitioner, who had been incarcerated for 2 year and 4 months, while only 8 out of the 23 witnesses had been examined. Although there are no standard guidelines for determining what constitutes ‘prolonged’ custody, the court acknowledged that such delays must be assessed based on the unique facts of each case. The Court remarked, “Undoubtedly, the petitioner is incarcerated for about 2 years and 4 months and trial is still in progress and only 8 out of 23 witnesses have been examined so far. Needless to state, there is no standard guideline to assess as to what would be the period of custody that should be considered as ‘prolonged’, each case would have to be seen in its own facts and circumstances”.
The Court acknowledged that these discrepancies and other factual contentions must be addressed during the trial, stating, “The petitioner’s contention that the raiding team was carrying laptop, UPS, printer, sealing material and weighing machine is a falsity of facts depending on documents before the Trial Court as well as the examination of witnesses, some of which are yet to be examined”.
The decision of the Court:
The Court denied bail to the petitioner, holding that the conditions under Section 37 of the NDPS Act were not satisfied. It noted that if the trial is delayed, the petitioner may file a fresh bail application later. The Court emphasised that its observations are limited to the bail assessment and will not impact the merits of the case. The petition was dismissed, and the judgment was ordered to be uploaded promptly.
Case Title: EMEKA PRINCE LATH vs. STATE NCT OF DELHI
Citation: BAIL APPLN. 2438/2024
Coram: Justice Anish Dayal
Advocate for Petitioner: Adv. Chetan Bhardwaj, Priyal Bhardwaj
Advocate for Respondent: Adv. Amit Ahlawat (APP), SI Rajendra Meena (PS Anti Narcotics Squad, West Distt),