TaxTMI 
TaxTMI 
2025 (1) TMI 1808
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....for the spot. When they reached the Dhaula Kuan Bus Stand, the SI introduced the raiding team to 4-5 passers-by requesting them to join as independent witnesses, but all of them denied citing justified compulsion. At 9:45 PM, the raiding team reached the spot and took their positions. 4. At around 11:15 PM, they saw a Bolero car bearing no. HR02AM5455 in which 3 individuals were sitting. The car stopped in between pillar no. 80 and 81 to which the secret informer identified the suspected person as Firoz - sitting adjacent to the driver namely Munsad and his accomplice person who was sitting on the back seat identified as Zakir Hussain (the petitioner herein). The three individuals came to supply opium/heroin. 5. After sometime, the person sitting at the front seat namely Firoz and the person sitting at back seat namely Zakir Hussain (the petitioner herein) came out of the car carrying bags in their hands and started waiting for someone to whom the alleged contraband was to be delivered. After waiting for 10 minutes when nobody came to collect the bags, the raiding team apprehended the abovesaid persons with their bags. 6. The passers-by who had gathered there were informed....
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....ate (NCT of Delhi), 2024 SCC OnLine Del 7359. 14. Lastly, it is prayed that the petitioner is languishing in jail since 18.07.2022, none of the witnesses have been examined till yet out of total 22 prosecution witnesses and the co-accused namely Munsad is released on bail vide order dated 16.09.2023. SUBMISSIONS ON BEHALF OF THE STATE 15. It is argued by the Ld. APP that NDPS Act is a special statute with an overriding effect over CrPC. Sections 41, 42 and 43 of NDPS Act provides for warrants, search, arrest and seizure. These have an overriding effect over corresponding sections of CrPC. Section 51 of NDPS Act clarifies that the provisions of CrPC apply only to the extent they are not inconsistent with the NDPS Act. Therefore, the provisions of the NDPS Act take precedence over the general provisions of the CrPC, particularly concerning the procedure for search, seizure, and arrest. 16. It is contended by the Ld. APP that the provisions of Section 50 of NDPS Act are mandatory in nature, however, there is an exception i.e. Section 50(5), which allows a duly authorized officer to conduct a search without taking the person to be searched to a Gazetted officer or Magistrat....
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.... seizure. 23. Recently, the Hon'ble Supreme Court in Narcotics Control Bureau v. Kashif, 2024 SCC OnLine SC 3848 has elaborately dealt with the contours of section 52A of NDPS Act and has summarized as under:- "39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and....
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....holistic and cumulative viewof the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. ................ .................. ................ (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case." 26. In the present case, the arguments raised by the learned counsel for the petitioner that the samples drawn from the seized contraband were sent to the FSL for examination after a delay of 13 days which amounts to violation of the Standing Order 1/88 dated 15.03.1988, in view of the aforesaid judgment, it will be a subject matter of trial as the same falls under the "delayed compliance". Hence, the petitioner is at liberty to press the aforesaid ground during trial. Having said that, the other submissions of the learned counsel for the petitioner are being dealt as under:- Non compliance of sect....
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....d the petitioner chose not to exercise the same. Therefore, I am of the view that the requisite conditions of section 50 of NDPS Act have been complied with. Non Joinder of Independent Witness and lack of photography and videography 31. It has further been argued by the learned counsel for the petitioner that there have been no independent witnesses who have joined the investigation for the purpose of search even though the officers were already informed by secret information. Further, there is no photography and videography of the seizure process. 32. The said contention raised by the learned counsel for the petitioner and the identical submissions advanced by the learned APP for the State, I have already taken a view in Sanjay v. The State of NCT of Delhi in BAIL APPLN. 3710/2023 while relying on several judgments of the Hon'ble Supreme Court and of this Court that sentence/punishments are based on the quantity of the seized contraband, hence the procedure prescribed under the NDPS Act must be adhered to when any such recovery of the contraband is made. It was further observed that absence of independent witnesses may not vitiate the trial and the prosecution is at liber....
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....), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v. State of Rajasthan ("the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal...."). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab made observations to this effect. In Shaheen Welfare Association v. Union of India again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly...... 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). Hav....
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....in Dheeraj Kumar Shukla v. State of U.P., 2023 SCC OnLine SC 918, the Hon'ble Supreme Court dispensed the rigors of section 37 of NDPS Act and granted bail to the petitioner therein. Relevant para of the said judgment is extracted below:- "3. It appears that some of the occupants of the "Honda City" Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed." 39. The Hon'ble Supreme Court in Badsha Sk. v. State of W.B., 2023 SCC OnLine SC 1867 has granted bail to the petitioner, who had been in custody for more than 2 years with trial yet to begin. 40. In the present case, the petitioner has been in custody since 18.07.2022 i.e. more than 2 years 6 months. As per the chargesheet, there....