High Court of Delhi

Amjad Ali Vs. State (NCT of Delhi)

MANU/DE/4239/2022

31.10.2022

Narcotics

Mere passage of time cannot be a ground for grant of bail under NDPS Act

The present bail application has been filed by the Petitioner seeking regular bail in FIR under Sections 21/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) registered at Police Station Special Cell, New Delhi.

Present is a case where recovery of 2 kg of heroin, which is commercial quantity, has been made from the accused/applicant. In cases under NDPS Act, the definite embargo under Section 37 of the Act has to be kept in mind in view of judgment of State of Madhya Pradesh v. Kajad, making it clear that negation of bail is the rule and granting of bail is an exception under Section 37 of NDPS Act. Twin conditions have to be satisfied before granting bail in a case of recovery of commercial quantity of narcotic substance; first being the satisfaction of the court that there is reasonable ground for believing that accused is not guilty of offences he is charged with and for the satisfaction that he will not commit any such offence while on bail.

The discrepancies in the statements of witnesses and the infirmities pointed out by the learned counsel at the time of seizure cannot be appreciated at this stage. Four witnesses have been examined by the learned trial court. On the basis of record and the evidence recorded as yet by the learned Trial Court, there is nothing to infer that the accused has not committed the offence entitling him to release on bail. In the case of Union of India v. Prateek Shukla, it was held by the Hon'ble Supreme Court that the provisions of Section 37 of NDPS Act have to be applied strictly at the time of deciding bail application of an accused.

The arguments of the learned counsel that the accused is in judicial custody for more than three years at this stage can also be of no help to him. In this regard, it will be pertinent to refer to the judgment of the Apex Court in case of Sheru v. Narcotics Control Bureau, wherein though the accused had been in judicial custody for almost eight years, the Court expressed that mere passage of time cannot be a ground for grant of bail under NDPS Act. However, since the situation was different due to Covid-19 pandemic, the Apex Court had granted bail to the accused therein, but with a clarification that the same shall not be treated as a precedent.

However, considering that total 23 witnesses have to be examined by the learned Trial Court and the accused is in judicial custody for the last three years, the learned Trial Court is requested to expedite recording of evidence in the present case. At this stage, no ground for bail is made out against accused Amjad Ali. Application rejected.

Tags : Judicial custody Bail Grant

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