2025 (5) TMI 563 - HC - Indian Laws

Accused granted regular bail after nine years despite NDPS Act Section 37 restrictions due to trial delays

SULTAN ANSARI Versus DIRECTORATE OF REVENUE INTELLIGENCE

Delhi HC granted regular bail to petitioner charged with recovery of 250 kgs of Pseudo Ephedrine Hydrochloride under NDPS Act. Court relied on SC ... Seeking grant of Regular bail - recovery of contraband substances i.e., psychotropic and controlled substances, 250 kgs. of Pseudo Ephedrine Hydrochloride - HELD THAT:- In Mohd. Muslim v. State (NCT of Delhi), [2023 (5) TMI 321 - SUPREME COURT] the Supreme Court held that undue delay in trial can be a ground for grant of bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, despite Section 37 of the Act putting heavy limitations on the grant of bail. Considering the totality of the circumstances as narrated above and also, in the last nine years, the testimony of only 17 prosecution witnesses has been recorded, out of 53 prosecution witnesses and the trial may take a long time; and the petitioner was earlier granted interim bail and the conditions thereof were not flouted by him in any manner, the present petition is allowed and the petitioner is admitted to regular bail. Bail application allowed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court were:Whether the petitioner is entitled to regular bail under Section 439 of the Code of Criminal Procedure, 1973, despite the stringent bail provisions under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)Rs.Whether the prolonged delay in trial and the stage of evidence recorded justify grant of bail to the petitionerRs.Whether the petitioner's role as an employee and Production Chemist at the factory absolves him from criminal liability for the alleged recovery of controlled and psychotropic substancesRs.Whether the petitioner's allegations of custodial torture and coerced confession have merit and impact the bail considerationRs.Whether the petitioner complied with procedural safeguards under the NDPS Act, such as Section 52A relating to sample collectionRs.Whether the petitioner's case is distinguishable from co-accused persons who have been granted bailRs.Whether there has been any change in circumstances since the dismissal of the petitioner's earlier bail applicationRs.2. ISSUE-WISE DETAILED ANALYSISEntitlement to Bail under Section 439 CrPC vis-`a-vis Section 37 NDPS ActThe NDPS Act, 1985 imposes a stringent embargo on granting bail under Section 37, requiring the accused to demonstrate that he is not guilty and is not likely to commit an offence if released. The respondent relied heavily on this provision and relevant precedents including Union of India v. Rattan Mallik and others, emphasizing that bail is generally not granted in NDPS cases unless the accused meets this high threshold.The petitioner, however, invoked the Supreme Court's recent jurisprudence, particularly the decision in Rabi Prakash v. State of Odisha, which recognized that prolonged incarceration without trial completion infringes the fundamental right under Article 21 and that conditional liberty may override statutory embargoes in exceptional circumstances.The Court acknowledged the competing principles: the statutory prohibition on bail in NDPS cases versus the constitutional mandate against prolonged detention without trial. The Court balanced these by considering the delay in trial and the stage of evidence recorded.Delay in Trial and Stage of EvidenceThe trial had been pending for approximately nine years, with only 17 out of 53 prosecution witnesses examined. The petitioner argued that such prolonged delay entitled him to bail. The Court relied on the Supreme Court's ruling in Mohd. Muslim v. State (NCT of Delhi), which held that undue delay in trial can be a ground for bail even under the NDPS Act.The Court found the petitioner's argument persuasive, noting that the trial was likely to take much longer and that the petitioner had already been granted interim bail previously without violating any conditions. The Court held that the delay militated in favour of granting bail.Petitioner's Role and Criminal LiabilityThe petitioner asserted that he was a Production Chemist employed by the company, with no involvement in the purchase, sale, or diversion of controlled substances. He contended that the incriminating recoveries were unrelated to him and that he was merely a salaried employee performing authorized manufacturing functions. Further, the statutory records were maintained by the company's directors, who remained absconding or unarraigned.The respondent disputed this, alleging that the petitioner was aware of the conspiracy and the diversion of psychotropic substances, relying on documents and the petitioner's voluntarily tendered statement (later retracted). The respondent maintained that the petitioner was a key participant in the criminal conspiracy.The Court noted these conflicting contentions but observed that such factual disputes were primarily issues for trial and not to be adjudicated at the bail stage, consistent with precedents like State of Punjab v. Balbir Singh.Allegations of Custodial Torture and Coerced ConfessionThe petitioner alleged illegal custody, torture, and that his confession was obtained under threat, which he had retracted. The respondent denied these allegations, terming them baseless and an afterthought.The Court did not find sufficient material to accept the petitioner's claims at the bail stage and treated these as matters for trial or appropriate investigation.Compliance with Section 52A NDPS ActThe petitioner contended that there was no compliance with Section 52A, which mandates that samples be taken before the Learned Metropolitan Magistrate. The Court did not elaborate extensively on this point but implicitly considered that procedural irregularities, if any, were also matters for trial and did not warrant bail denial or grant on their own.Comparison with Co-accused Granted BailThe petitioner highlighted that several co-accused persons had been granted bail, arguing that his case was better situated. The Court noted this fact and considered it relevant in the overall assessment of bail, especially given the prolonged trial and partial evidence recorded.Change in Circumstances Since Earlier Bail RejectionThe respondent contended that the petitioner's earlier bail application was dismissed and there was no change in circumstances. The Court observed that the earlier rejection was in 2017, and since then, the trial had seen minimal progress over six years, constituting a significant change in circumstances favouring bail.Conditions Imposed on BailIn granting bail, the Court imposed strict conditions, including personal bond, sureties, restrictions on movement outside Delhi/NCR without permission, prohibition on contacting witnesses or the complainant, and surrender of passport if any. These conditions reflect the Court's effort to balance liberty with ensuring the integrity of the trial process.3. SIGNIFICANT HOLDINGS'The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of NDPS Act, 1985.''Undue delay in trial can be a ground for grant of bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, despite Section 37 of the Act putting heavy limitations on the grant of bail.''Issues relating to the guilt or innocence of the accused and the role played by him in the alleged offence are matters for trial and cannot be adjudicated at the stage of bail.''Considering the totality of the circumstances including the stage of trial, the delay in recording evidence, and the petitioner's conduct during interim bail, the petitioner is entitled to regular bail subject to stringent conditions.'The Court finally determined that the petitioner's prolonged detention without trial completion, the limited progress in trial, and the petitioner's previously clean conduct on interim bail justified grant of regular bail despite the statutory embargo under the NDPS Act. The Court emphasized that the petitioner must comply with all bail conditions strictly to ensure the trial's integrity and that bail does not amount to acquittal or preclude trial on merits.