Delhi HC grants bail in NDPS case despite commercial quantity charas recovery citing procedural lapses and trial delays

Delhi HC granted bail to accused in NDPS case involving commercial quantity of charas recovery. Despite rigorous Section 37 requirements, court found reasonable grounds to believe accused not guilty based on: absence of independent witnesses during search despite two-hour advance notice, no photography/videography of recovery, delayed Section 52A application filing (two months post-seizure), and prolonged trial delay. Court noted prosecution failed to associate public witnesses at public place despite prior secret information. Bail granted on personal bond of Rs.1,00,000 with two sureties, considering accused's clean antecedents and likelihood of extended trial period.

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Issues Involved:
1. Applicability of Section 37 of the NDPS Act for granting bail.
2. Delay in filing application under Section 52A of the NDPS Act and sending samples to FSL.
3. Compliance with procedural requirements for sampling under Standing Order No. 1/88.
4. Non-joinder of independent witnesses and absence of photography/videography.
5. Delay in trial and its impact on the applicant's right to bail.

Detailed Analysis:

1. Applicability of Section 37 of the NDPS Act for Granting Bail:
The judgment emphasizes that for granting bail under the NDPS Act, the accused must satisfy the twin conditions of Section 37(1)(b): (i) reasonable grounds for believing that the accused is not guilty of the offence, and (ii) that the accused is not likely to commit any offence while on bail. The Court must also consider factors like the nature and gravity of the accusation, severity of punishment, and likelihood of the accused absconding. In this case, the applicant argued for a liberal interpretation of Section 37 due to procedural lapses by the prosecution.

2. Delay in Filing Application under Section 52A of the NDPS Act and Sending Samples to FSL:
The applicant argued that the delay in filing the application under Section 52A and sending samples to FSL violated procedural guidelines, specifically Standing Order No. 1/88, which requires samples to be dispatched within 72 hours. The Court discussed the mandatory nature of Section 52A for the disposal of seized narcotics and the role of the Magistrate in certifying the inventory and samples. However, it concluded that since the contraband was not disposed of, the delay could be justified during the trial, and mere delay would not vitiate the evidence.

3. Compliance with Procedural Requirements for Sampling under Standing Order No. 1/88:
The applicant challenged the sampling procedure, arguing non-compliance with Standing Order No. 1/88, which mandates drawing samples from each package/container. The Court noted that while substantial compliance with Standing Orders is a requirement of law, deviations do not automatically render the evidence inadmissible. The prosecution must prove the seized substance is the contraband, and any procedural lapse would be examined during the trial.

4. Non-Joinder of Independent Witnesses and Absence of Photography/Videography:
The applicant contended that no independent witnesses were involved, and no photography/videography was conducted during the recovery, despite being in a public place. The Court acknowledged that while the absence of independent witnesses and lack of photography/videography could cast doubt on the prosecution's case, these issues would be scrutinized during the trial. However, the benefit of doubt due to these lapses could not be denied at the bail stage.

5. Delay in Trial and its Impact on the Applicant's Right to Bail:
The Court recognized that prolonged incarceration without trial completion undermines the right to life and liberty under Article 21 of the Constitution. The applicant had been in custody for over three years, with the trial at an early stage. The Court cited precedents where bail was granted due to undue delay in trial, emphasizing that conditional liberty must override statutory restrictions under Section 37 of the NDPS Act in such cases.

Conclusion:
The Court granted bail to the applicant, considering the absence of independent witnesses, lack of photography/videography, and prolonged delay in trial. It imposed conditions to ensure the applicant's cooperation with the investigation and prevent any influence on the trial process. The judgment clarified that observations made were for deciding the bail application and should not influence the trial's outcome.

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