Delhi High Court
Mahesh vs State (Govtof Nct Of Delhi on 8 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 25th January, 2022
Pronounced on: 8th February, 2022
+ BAIL APPLN. 51/2022
MAHESH ... Petitioner
Through: Mr. Akshay Bhandari and
Mr. Digvijay Singh, Advocates
Versus
STATE (GOVT OF NCT OF DELHI) ... Respondent
Through: Ms. Kusum Dhalla, APP for State
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The present application has been preferred under Section 439 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code")
for seeking regular bail in FIR bearing No. 192/2017 registered at Police
Station Crime Branch under Section 22 of Narcotics, Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS
Act").
2. The factual matrix in the instant case, as submitted by the
prosecution, is as under:
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a) On 29th October 2017, ASI Pawan Kumar of Narcotics Cell
Crime Branch, received a secret information that one person
namely Kamal Kalra resident of Rohini Delhi who was involved in
sale & supply of Ecstasy (a party drug) in Delhi-NCR, and would
come near Goodwill Apartment Sector-13, Rohini, Delhi with his
associate Akshay in between 06:30-07:00 PM to deliver Ecstasy to
someone. The secret information was shared with Inspector/NCB,
who verified the facts and conveyed the same to ACP/NCB. The
ACP ordered to conduct a raid. The secret information was reduced
into writing vide DD No. 07 dated 29th October 2017 at 05:50 PM
at Narcotics Cell, Crime Branch and the same was forwarded to
senior officers in compliance of Section 42 of the NDPS Act.
b) After obtaining permission from senior officers and
following all the mandatory provisions under NDPS Act, ASI
Pawan Kumar organized a raiding party comprising of himself, ASI
Satbir Singh, and HC Satender Pal and left for the spot at 06:00 PM
vide DD No. 8 in a private vehicle No. HR-10N-0449. On the way
to the spot, public persons were requested to join the raiding party
but none of them agreed.
c) Trap was laid at the spot and at the instance of informer, one
person was apprehended at about 07:05 PM whose identity was
revealed as Kamal Kalra s/o Rajinder Kaira r/o F-3/58 (2nd Floor)
Sector-11, Rohini, Delhi. The apprehended person was apprised
about the secret information and his legal rights to be searched in
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presence of a Gazetted Officer or Magistrate. A written notice u/s
50 NDPS Act was also served upon him, but he declined to be
searched in presence of a G.O/Magistrate.
d) Thereafter his formal search was carried out wherein, 100
Pills of Ecstasy (weighing 42 grams) were recovered from his
possession. The recovered contraband was seized after taking out
two samples of 10 pills each. Accordingly, the FIR bearing No.
192/17 dated 29th October 2017 under Sections 22/29 of the NDPS
Act was registered at Crime Branch and further investigation of the
case was carried out by ASI Dushyant Kumar.
e) During investigation, IO/ASI Dushyant Kumar arrested the
accused Kamal Kalra who made a disclosure statement, stating
therein that he procured the recovered contraband from Mahesh
Goel and disclosed the Mobile number of the Applicant. Accused
Kamal Kalra was allowed to use his seized Mobile phone during PC
remand just to apprehend the applicant.
f) Accordingly, at the instance of accused Kamal Kalra,
Applicant was apprehended at 8:30 PM on 31st October 2017 from
Dwarka and 20 grams of 3,4-Methylenedioxymethamphetamine
(MDMA) was recovered from his possession and subsequently he
was arrested in the case. Exhibits were sent to FSL for analysis and
the report thereof received was positive for Ecstasy (MDMA).
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3. The investigation has been completed and chargesheet has been
filed before the Court of Learned ASJ. Charges have been framed by the
Learned Trial Court on 15th November 2018 qua the commission of
offences under Sections 22 and 29 of the NDPS Act.
4. Mr. Akshay Bhandari assisted by Mr. Digvijay Singh, learned
counsels for the Applicant submitted that the present case as alleged
against the Applicant is false and fabricated.
5. Learned counsels further submitted that the main accused against
whom there is an allegation of being in possession of 42 grams of Ecstasy
has already been enlarged on bail by a Coordinate Bench of the Hon‟ble
High Court vide the order dated 17th October 2019. The allegation against
the Applicant is that he was found in possession of 20 grams of Ecstasy
which is much lesser than the allegation against the main accused and
therefore, it has been submitted that the Applicant be released on bail as
the case of the Applicant is on a better footing.
6. Furthermore, it was submitted by the learned counsels that the
Applicant has been languishing in jail for more than 4 years as an
undertrial accused. So far, only two witnesses have been examined,
therefore there is no chance that the trial shall be concluded in near future.
7. Per contra, Ms. Kusum Dhalla, learned APP for State vehemently
opposed the Bail Application and submitted that the contraband recovered
from the Applicant was of commercial quantity. In case, bail is granted to
the applicant it is quite likely that he may, again, get involved in drug
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trafficking and jump bail. Furthermore, it was submitted that the CDR
analysis of mobile phones of both the accused also confirm their
proximity and presence at the place of delivery of contraband. After
completion of investigation, charge sheet was filed in the court. CDR of
both the accused is also a part of the charge-sheet. Keeping in view of
above explained facts and circumstances, learned APP submitted that the
present application deserves to be dismissed.
8. Heard learned counsels for the parties and perused the record,
specifically the averments made in the petition, the contents of the FIR,
and the Status Report filed by the State.
9. In light of the aforesaid, it is pertinent to refer and analyze the
provisions and objective of the NDPS Act. Section 37 of the Act reads as
under:
37. Offences to be cognizable and non-bailable. -
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence
punishable for offences under section 19 or
section 24 or section 27A and also for
offences involving commercial quantity shall
be released on bail or on his own bond
unless-
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(i) the Public Prosecutor has been
given an opportunity to oppose the
application for such release, and
(ii) where the Public Prosecutor
opposes the application, the court
is satisfied that there are
reasonable grounds for believing
that he is not guilty of such offence
and that he is not likely to commit
any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973
(2 of 1974) or any other law for the time being in force
on granting of bail.
10. In view of the gravity of the consequences of drug trafficking, the
offences under the NDPS Act have been made cognizable and non-
bailable. The Section does not allow granting bail for offences punishable
under Section 19 or Section 24 or Section 27A and for offences involving
commercial quantity unless the two-fold conditions prescribed under the
Section have been met. The conditions include - hearing the Public
Prosecutor and satisfaction of the court based on reasonable grounds that
the accused is not guilty of the offence and that he is likely to not commit
an offence of a similar nature.
11. The fetters on the power to grant bail do not end here, they are over
and above the consideration of relevant factors that must be done while
considering the question of granting bail. The Court also needs to be
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satisfied before grant of bail about the scheme of Section 439 of the Code.
Thus, it is evident that the present Section limits the discretion of the court
in matters of bail by placing certain additional factors over and above,
what has been prescribed under the Code.
12. While considering the question of bail, the Court under Section
37(b)(ii) of the NDPS Act is not required to be merely satisfied about the
dual conditions i.e., prima facie opinion of the innocence of the accused
and that the accused will not commit a similar offence while on bail, but
the court must have „reasonable grounds‟ for such satisfaction.
13. The term „reasonable grounds‟ under Section 37(b)(ii) has been
interpreted by the Hon‟ble Supreme Court in the case of Union of India v.
Shiv Shanker Kesari, (2007) 7 SCC 798. It was a case where an appeal
was preferred against the order granting bail under the NDPS Act by the
High Court. The prosecution alleged that the raiding party seized nearly
400 kgs of poppy straw from the possession of the accused therein. The
special court rejected the bail while the High Court granted the bail on the
ground that the recovery was not from the exclusive possession of the
accused, but other family members were also involved. The Supreme
Court set aside the order granting bail. In this context, it interpreted
„reasonable grounds‟ under Section 37 of the Act, as under:
"7. The expression used in Section 37(1)(b)(ii) is
"reasonable grounds". The expression means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the
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accused is not guilty of the offence charged and this
reasonable belief contemplated in turn points to
existence of such facts and circumstances as are
sufficient in themselves to justify recording of
satisfaction that the accused is not guilty of the offence
charged. The word "reasonable" has in law the prima
facie meaning of reasonable in regard to those
circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult to
give an exact definition of the word "reasonable".
14. Thus, the term „reasonable grounds‟ is not capable of any rigid
definition nor of being put into any straight-jacket formula, but its
meaning and scope will be determined based on the surrounding facts and
circumstances of each case. Thus, what may be reasonable in one set of
facts may not be reasonable in another set of facts.
15. The Supreme Court recently in the case of Union of India v. Md.
Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with
respect to Section 37 of the Act. After analysing the previous decisions of
the Hon‟ble Supreme Court, the court prescribed the following test for
granting bail under Section 37 of the NDPS Act:
"20. Based on the above precedent, the test which the
High Court and this Court are required to apply while
granting bail is whether there are reasonable grounds
to believe that the accused has not committed an
offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb
the menace of drug-trafficking in the country,
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stringent parameters for the grant of bail under the
NDPS Act have been prescribed."
16. Thus, the Court must be conscious about the mischief that is sought
to be curbed by the Act and the consequences that might ensue if the
person accused of the offence under the Act is released on bail. The court
ought to be satisfied on the basis of reasonable grounds discernible from
the facts and circumstances that the Petitioner is not guilty of offences that
the accused is charged with. Additionally, the court also needs to be
satisfied that the person so released will not commit the offence while
being on bail.
17. In the instant case, the Applicant has been accused of and charged
for possessing 20 grams of Ecstasy being a commercial quantity.
However, the main accused, charged with the possession of a larger
quantity of contraband and on the basis of whose statement the Applicant
was arraigned and subsequently raided upon in the instant case, has
already been released on Bail by a Coordinate Bench of this High Court.
Thus, the application of the Applicant merits indulgence of this Court on
the ground of parity.
18. Further, neither the Status Report on record, nor the learned APP in
the course of her arguments, has cited the previous involvement of the
Applicant in any other criminal cases, and as such the Applicant has clean
antecedents, as evident from material on record.
19. Therefore, proceeding to the application of Section 37 in the instant
matter, the APP has been heard who has vehemently opposed the bail
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petition. In light of the aforesaid facts and circumstances, prima facie the
second condition prescribed under the section is satisfied. This Court is
satisfied that there are reasonable grounds, based on the analysis of the
provision in the foregoing paragraphs and its application to the facts of the
case, that the Applicant praying for regular bail can be allowed indulgence
of this Court.
20. Further, in the instant case, the Applicant has been incarcerated for
more than four years as an undertrial, whereas on date, two of the
witnesses have been examined and the trial remains pending. Speedy
Justice is a Fundamental Right enshrined under the ambit of Article 21 of
the Constitution of India, and the same needs to be given effect by this
Court in letter and in spirit, else it will remain as a dead letter of law.
21. The Constitution Bench judgment of the Hon‟ble Supreme Court in
Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 has laid down
the detailed guidelines with respect to speedy trial and observed as under:
"86. In view of the above discussion, the following
propositions emerge, meant to serve as guidelines. We
must forewarn that these propositions are not
exhaustive. It is difficult to foresee all situations. Nor
is it possible to lay down any hard and fast rules.
These propositions are:
(1) Fair, just and reasonable procedure implicit
in Article 21 of the Constitution creates a right
in the accused to be tried speedily. Right to
speedy trial is the right of the accused. The fact
that a speedy trial is also in public interest or
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that it serves the social interest also, does not
make it any the less the right of the accused. It is
in the interest of all concerned that the guilt or
innocence of the accused is determined as
quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21
encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and
re-trial. That is how, this Court has understood
this right and there is no reason to take a
restricted view.
(3) The concerns underlying the right to speedy
trial from the point of view of the accused are:
(a) the period of remand and pre-
conviction detention should be as short as
possible. In other words, the accused
should not be subjected to unnecessary or
unduly long incarceration prior to his
conviction;
(b) the worry, anxiety, expense and
disturbance to his vocation and peace,
resulting from an unduly prolonged
investigation, inquiry or trial should be
minimal; and
(c) undue delay may well result in
impairment of the ability of the accused to
defend himself, whether on account of
death, disappearance or non-availability of
witnesses or otherwise.
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(4) At the same time, one cannot ignore the fact
that it is usually the accused who is interested in
delaying the proceedings. As is often pointed
out, "delay is a known defence tactic". Since the
burden of proving the guilt of the accused lies
upon the prosecution, delay ordinarily
prejudices the prosecution. Non-availability of
witnesses, disappearance of evidence by lapse of
time really work against the interest of the
prosecution. Of course, there may be cases
where the prosecution, for whatever reason, also
delays the proceedings. Therefore, in every case,
where the right to speedy trial is alleged to have
been infringed, the first question to be put and
answered is -- who is responsible for the delay?
Proceedings taken by either party in good faith,
to vindicate their rights and interest, as
perceived by them, cannot be treated as delaying
tactics nor can the time taken in pursuing such
proceedings be counted towards delay. It goes
without saying that frivolous proceedings or
proceedings taken merely for delaying the day of
reckoning cannot be treated as proceedings
taken in good faith. The mere fact that an
application/petition is admitted and an order of
stay granted by a superior court is by itself no
proof that the proceeding is not frivolous. Very
often these stays are obtained on ex parte
representation.
(5) While determining whether undue delay has
occurred (resulting in violation of Right to
Speedy Trial) one must have regard to all the
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attendant circumstances, including nature of
offence, number of accused and witnesses, the
workload of the court concerned, prevailing
local conditions and so on -- what is called, the
systemic delays. It is true that it is the obligation
of the State to ensure a speedy trial and State
includes judiciary as well, but a realistic and
practical approach should be adopted in such
matters instead of a pedantic one.
(6) Each and every delay does not necessarily
prejudice the accused. Some delays may indeed
work to his advantage. As has been observed by
Powell, J. in Barker [33 L Ed 2d 101] "it cannot
be said how long a delay is too long in a system
where justice is supposed to be swift but
deliberate". The same idea has been stated by
White, J. in U.S. v. Ewell [15 L Ed 2d 627] in the
following words:
„... the Sixth Amendment right to a speedy
trial is necessarily relative, is consistent
with delays, and has orderly expedition,
rather than mere speed, as its essential
ingredients; and whether delay in
completing a prosecution amounts to an
unconstitutional deprivation of rights
depends upon all the circumstances.‟
However, inordinately long delay may be taken
as presumptive proof of prejudice. In this
context, the fact of incarceration of accused will
also be a relevant fact. The prosecution should
not be allowed to become a persecution. But
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when does the prosecution become persecution,
again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is
called the „demand‟ rule. An accused cannot try
himself; he is tried by the court at the behest of
the prosecution. Hence, an accused's plea of
denial of speedy trial cannot be defeated by
saying that the accused did at no time demand a
speedy trial. If in a given case, he did make such
a demand and yet he was not tried speedily, it
would be a plus point in his favour, but the mere
non-asking for a speedy trial cannot be put
against the accused. Even in USA, the relevance
of demand rule has been substantially watered
down in Barker [33 L Ed 2d 101] and other
succeeding cases.
(8) Ultimately, the court has to balance and
weigh the several relevant factors -- „balancing
test‟ or „balancing process‟ -- and determine in
each case whether the right to speedy trial has
been denied in a given case.
(9) Ordinarily speaking, where the court comes
to the conclusion that right to speedy trial of an
accused has been infringed the charges or the
conviction, as the case may be, shall be quashed.
But this is not the only course open. The nature
of the offence and other circumstances in a given
case may be such that quashing of proceedings
may not be in the interest of justice. In such a
case, it is open to the court to make such other
appropriate order -- including an order to
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conclude the trial within a fixed time where the
trial is not concluded or reducing the sentence
where the trial has concluded -- as may be
deemed just and equitable in the circumstances
of the case.
(10) It is neither advisable nor practicable to fix
any time-limit for trial of offences. Any such rule
is bound to be qualified one. Such rule cannot
also be evolved merely to shift the burden of
proving justification on to the shoulders of the
prosecution. In every case of complaint of denial
of right to speedy trial, it is primarily for the
prosecution to justify and explain the delay. At
the same time, it is the duty of the court to weigh
all the circumstances of a given case before
pronouncing upon the complaint. The Supreme
Court of USA too has repeatedly refused to fix
any such outer time-limit in spite of the Sixth
Amendment. Nor do we think that not fixing any
such outer limit ineffectuates the guarantee of
right to speedy trial.
(11) An objection based on denial of right to
speedy trial and for relief on that account,
should first be addressed to the High Court.
Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings,
except in a case of grave and exceptional nature.
Such proceedings in High Court must, however,
be disposed of on a priority basis."
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22. It is also pertinent to point out that these guidelines have
subsequently been upheld by a seven-judge bench of the Hon‟ble Supreme
Court in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578.
These guidelines were further applied by the Hon‟ble Supreme Court in
the subsequent decision of Pankaj Kumar v. State of Maharashtra (2008)
16 SCC 117, wherein the court laid down the following test with regard to
the application of the guidelines:
"23. In every case, where the right to speedy trial is
alleged to have been infringed, the court has to
perform the balancing act upon taking into
consideration all the attendant circumstances,
enumerated above, and determine in each case
whether the right to speedy trial has been denied in a
given case. Where the court comes to the conclusion
that the right to speedy trial of an accused has been
infringed, the charges or the conviction, as the case
may be, may be quashed unless the court feels that
having regard to the nature of offence and other
relevant circumstances, quashing of proceedings may
not be in the interest of justice. In such a situation, it
is open to the court to make an appropriate order as it
may deem just and equitable including fixation of time
for the conclusion of trial."
23. In the instant case the Applicant has been in jail for more than four
years. Out of a total of 14 witnesses only two witnesses have been
examined as on date, and as such there is no probability of the trial being
concluded in the near future. Thus, pending trial the Applicant cannot be
kept incarcerated for an indefinite period. Therefore, this Court must step
in to ensure that speedy justice is done, and injustice is not caused to the
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undertrial Applicant. Further, as already mentioned, the main accused
charged with the possession of a larger quantity of contraband has already
been enlarged on Bail by a Coordinate Bench of this High Court. Thus,
the application of the Applicant is also entitled to bail on the ground of
parity.
24. In view of the aforementioned facts, circumstances, analysis and
reasoning, keeping in mind the legal provisions specifically on the ground
of parity, and clean antecedents of the Applicant, this Court is inclined to
allow the instant bail application albeit with stringent conditions given the
gravity of the accusations levelled.
25. It is accordingly directed that the Applicant shall be released on bail
upon his furnishing of a personal bond of Rs. 50,000/- (Rupees Fifty
Thousand only), with two sureties of like amount to the satisfaction of the
Investigating Officer, subject to the following conditions:
a) he shall surrender his passport, if any, to the Investigating
Officer and shall under no circumstances leave India without
prior permission of the Court concerned;
b) he shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case;
c) he shall provide his mobile number(s) to the Investigating
Officer and keep it operational at all times;
d) he shall drop a PIN on the Google map to ensure that his
location is available to the Investigating Officer;
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e) he shall commit no offence whatsoever during the period he is
on bail;
f) he shall appear before the Court concerned on every date; and
g) in case of change of residential address and/or mobile number,
he shall intimate the same to the Investigating Officer/ Court
concerned by way of an affidavit.
26. The Trial Court is directed to continue with the trial and endeavour
to conclude the same as expeditiously as possible.
27. Accordingly, the instant bail application stands allowed.
28. It is, however, made clear that the observations made herein qua the
Applicant, while allowing this application, shall have no bearing,
whatsoever, on the merits of the case or on the trial pending before the
Court concerned.
29. Copy of the judgment be sent to the concerned Jail Superintendent
for compliance.
30. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
February 8, 2022
gs/@dityak
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