Bail Appln. 2754/2022, decided on 1st December, 2023.
"TSPs"
Nos. 36 and 37. As for the alleged discrepancy regarding the seals, the
Section 52A order accurately mentions the seals as "SK" and "RS." The
statement of HC Ghanshyam under Section 161 CrPC, which refers to the
seals as "AK" instead of "SK," is merely a typographical error.
Analysis
5. The Court has considered the facts of the case and the contentions
advanced by the parties. While evaluating a bail application, the Court must
consider several factors, including whether there is a prima facie case or
reasonable grounds to believe the accused has committed the offence, the
likelihood of the accused repeating the offence, the nature and seriousness of
the accusation, the severity of the potential punishment upon conviction, the
risk of the accused absconding or fleeing if granted bail, and the reasonable
apprehension of witnesses being intimidated by the accused.
6. In the instant matter, the contraband recovered from the Applicant
comprises Heroin weighing 4 kgs which falls within the definition of
'commercial quantity'. As a result, the rigours of Section 37 of the NDPS
Act are attracted, which impose stringent conditions for the grant of bail.
This provision mandates a twin-layered threshold to be satisfied before bail
can be granted: first, the Court must be satisfied, upon hearing the Public
Prosecutor, that there are reasonable grounds for believing that the accused
is not guilty of the offence; and second, that he is not likely to commit any
offence while on bail. The Supreme Court has consistently held that denial
of bail is the rule and its grant is an exception under Section 37(1)(b)(ii) of
the NDPS Act.7 Hence, given the recovery of contraband is of a commercial
quantity, the rigours of Section 37 must be strictly applied.
State of M.P. v. Kajda, (2001) 7 SCC 673.
Whether there are Reasonable Grounds to Believe the Accused is Not
Guilty
7. In the course of investigation, the Prosecution undertook forensic
analysis of the data retrieved from the Applicant's mobile phone, including
WhatsApp conversations, media files, and associated metadata. Based on the
chats and images retrieved, it was discovered that the Applicant and his
father have been actively involved in the illicit supply of contraband drugs.
Specifically, an analysis of the Applicant's phone, including the WhatsApp
account, media files, and other data, revealed that on 31 st August 2022,
pictures of approximately 4 kg of Heroin were taken and sent by the
Applicant via his WhatsApp number to his father's account. Shortly
thereafter, the father responded by sending back a photograph of a man,
which suggests that this individual was to receive the contraband from the
Applicant, in furtherance of instructions issued by the father.
8. This material prima facie establishes that the Applicant was
knowingly and actively engaged in a coordinated drug trafficking operation,
acting under the directions of his father. In this regard, the Applicant's
contention that that no recipient was apprehended at the site is of limited
relevance at this stage. The recovery of 3.005 kilograms of heroin from the
Applicant on the night of 2nd September, 2022, followed by an additional 1
kilogram recovered at his instance on 4th September, 2022, forms a
compelling body of evidence pointing to his conscious possession and active
participation in the illicit trade. Thus, the Court is of the view that there are
no sufficient grounds to believe that the Applicant is not guilty of the
offences under the NDPS Act.
No Likelihood of Committing an Offence while on Bail
9. The Applicant seeks to bolster his claim for bail by pointing to the
absence of any prior criminal antecedents. While that factor is not without
weight, it cannot be viewed in isolation, especially in the context of the
wider material gathered during investigation. It has emerged that the
Applicant's father is not only implicated in the present case, but also has a
demonstrable history of involvement in similar offences under the NDPS
Act, where substantial quantities of contraband were recovered. Considering
the father's prior involvement in drug trafficking and the Applicant's role in
supplying drugs at his father's direction as part of a cartel, it is not plausible
to assume that the Applicant would refrain from committing further offences
if granted bail.
Non-compliance of Section 52A of the NDPS Act
10. The Applicant has sought to rely on the alleged non-compliance of the
Prosecution with procedural requirements under the NDPS Act, arguing that
the recovery and seizure process suffered from procedural deficiencies.
Specifically, the Applicant contends that the contraband recovered from him
was sent for sampling after a delay of two days, contrary to the timeline
prescribed under Section 52A of the NDPS Act. Additionally, the Applicant
argues that the officer who seized the contraband was different from the
officer who submitted the application for sampling under Section 52A. The
Applicant places reliance on the decision in Union of India v. Mohan Lal &
Anr.,8 which held that the procedure under Section 52A of the NDPS Act is
mandatory and not directory in nature.
11. Section 52A outlines the mandatory procedure for the disposal of
seized narcotic and psychotropic substances. While the procedural integrity
(2016) 3 SCC 379.
of a seizure is undoubtedly important under the NDPS Act, given the serious
penal consequences of conviction, it is equally well established that every
procedural lapse cannot, without more, form the basis for the grant of bail.
This Court, in Somdut T Singh Alias Shivam v. Narcotics Control Bureau,
observed that no mandatory time duration is prescribed for compliance with
Section 52A of the NDPS Act. While it is preferable to follow the seizure
procedure at the earliest, any delay in compliance cannot be a sole ground
for granting bail. The Applicant must demonstrate how the procedural
irregularities under Section 52A have caused prejudice to his case. At this
stage, they do not, in the opinion of this Court, constitute valid grounds to
undermine the prima facie case established against the Applicant, or to
justify the grant of bail in a case involving commercial quantity of Heroin.
Discrepancy in the weight of the seized samples
12. The Applicant seeks to rely on the minor discrepancies in the weight
of the samples seized, alleging that the variance between the weights noted
at the time of seizure and those recorded before the Magistrate casts doubt
on the integrity of the evidence. In this regard, it is noted that the contraband
seized on 2nd September, 2022 was weighed at 980 grams, 965 grams, and
1060 grams, marked as A-1, A-2, and A-3, respectively, while A-4 seized on
4th September, 2022 weighed 1000 grams. During the proceedings under
Section 52A NDPS, the recorded weights of these packets were: A-1 at 983
grams, A-2 at 969 grams, and A-3 at 1065 grams. Accordingly, the
difference in the weight of the individual packets was merely 4-5 grams.
13. These variations, in the range of 4 to 5 grams, are too insignificant to
suggest any tampering or procedural impropriety. The Prosecution has
rightly pointed out that such differences in weight could be attributed to
factors such as air conditions, pressure, and other environmental factors. In
this context, it would be profitable to refer to the judgment in Yunus Khan
v. State (NCT of Delhi), where this Court addressed a similar situation
concerning discrepancies in the weight of recovered contraband. The Court
clarified that unless there is credible material to suggest interference with the
integrity of the samples, such marginal discrepancies cannot, by themselves,
undermine the Prosecution's case or furnish a ground for bail. In the absence
of any evidence indicating tampering or substitution, this Court finds no
merit in the Applicant's contention. That said, it remains open to the
Applicant to raise this argument at the stage of trial, where this defence can
be tested through cross-examination and appreciation of evidence.
Concealment of CDR
14. As for the claim that the CDRs of the Applicant were withheld, the
record belies such a contention. A bare perusal of Page No. 90 of the
chargesheet reveals that pursuant to the letter of the Investigating Officer,
the certified copies of CAF and Call details as well as Cell IDs of certain
mobile numbers from 1st August, 2022 to 2nd September, 2022, were
furnished by the TSP, Bharti Airtel Ltd., along with the certificate under
Section 65B of the Indian Evidence Act, 1872. In this regard, the reply
documents from Airtel, Jio and Vodafone regarding CDR/ CAF have duly
been filed in the chargesheet, appearing at Page Nos. 90-171. Therefore, the
Applicant's contention regarding concealed CDR is misplaced.
Non-compliance of Section 57
15. The Applicant has also contended that while the recovery made on 2 nd
September, 2022 was conducted under Section 57, the subsequent recovery
on 4th September, 2022 was not made under the said provision, indicating
that the same did not comply with the requisite procedure under the NDPS
Act.
16. This argument is misconceived. The legal position is well settled that
Section 57 is directory and not mandatory in nature. In Mohd. Jabir v. State
of NCT of Delhi,9 this Court has held that hat non-compliance with Section
57 does not entitle the accused to bail, as Section 57 does not outline a
"mandatory condition". Moreover, the initial recovery of 3.005 kg of
Heroin on 2nd September, 2022, which falls within the commercial quantity
category, is undisputed and fully compliant with procedural requirements.
The alleged irregularity concerning the recovery made two days later does
not dilute the gravity or evidentiary sufficiency of the initial seizure, which
by itself attracts the stringent provisions of Section 37 of the NDPS Act.
Thus, the plea based on Section 57 is untenable, and does not merit
consideration for the purposes of bail.
Discrepancy in seals
17. The Applicant has further contended that although two seals, "S.K."
and "R.S.", were affixed to the contraband, there is no General Diary (GD)
entry pertaining to the affixing of the "R.S." seal. However, this contention
is not borne out from the record. A perusal of the GD entries at Pages 36-37
of the chargesheet reveals a clear reference by the Investigating Officer to
both the "S.K." and "R.S." seals in the context of the seizure of the
contraband recovered from the Applicant. The relevant portion of the GD is
reproduced as follows:
2023 SCC OnLine Del 1827.
By:NITIN KAIN
Signing Date:29.03.2025
17:26:05
Independent witness and absence of videography
18. The Applicant has also argued that the Prosecution failed to associate
any independent witnesses during the seizure process and did not provide
any videography of the said process. It is true that courts have, in
appropriate cases, underscored the importance of associating independent
witnesses during seizures, particularly in cases involving recovery of
contraband from public places. Indeed in Bantu v. State Government of
NCT of Delhi,10 this Court had the occasion to express concern over the
frequent invocation of mechanical explanations for the absence of public
witnesses, and the potential impact such lapses may have on the
transparency and credibility of the seizure process. That said, the legal
position remains well settled that the non-availability of independent
witnesses or the absence of videography, while relevant for appreciation at
the stage of trial, does not by itself vitiate an otherwise lawful recovery,
particularly when supported by other compelling material.
19. In the present case, the recovery of four packets of Heroin,
collectively weighing 4 kg, is not only supported by the testimonies of
official witnesses, but is further reinforced by digital evidence, including
photographs retrieved from the Applicant's mobile phone, which reveal
attempts to conceal contraband within shampoo bottles. The forensic reports
corroborate the presence of heroin in the seized samples, and the data from
the Applicant's phone demonstrates coordination with co-accused persons.
In this backdrop, the absence of public witnesses or videography cannot by
itself be considered a decisive factor for the grant of bail, especially where,
as here, the record discloses prima facie evidence of the Applicant's active
involvement in the trafficking of commercial quantities of narcotic
substances.
Conclusion
20. In view of the foregoing discussion, this Court finds that the material
on record prima facie implicatesp the Applicant in the trafficking of a
commercial quantity of narcotic substances. The rigours of Section 37 of the
NDPS Act are fully attracted in the present case, and the Applicant has
2024 SCC OnLine Del 4671.
failed to satisfy the twin conditions required for the grant of bail thereunder.
Accordingly, the Court finds no merit in the present application, and the
same is dismissed.
21. Needless to state, any observations concerning the merits of the case
are solely for the purpose of deciding the question of grant of bail and shall
not be construed as an expression of opinion on the merits of the case.
22. Dismissed.
SANJEEV NARULA, J
MARCH 27, 2025
as
