BAIL APPLN./4303/2024 of ROHAN MALIK Vs STATE GOVT. OF NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI+BAIL APPLN. 4303/2024

ROHAN MALIK

.....Petitioner

Through:Mr. Tarish Vijay Sathe, Advocate.

versus

STATE GOVT. OF NCT OF DELHI.....RespondentThrough:Mr. Mukesh Kumar, APP for Statewith Mr. Amrendra, SI, ANTF, CrimeBranch.

CORAM:HON'BLE MR. JUSTICE SANJEEV NARULAO R R

13.01.2025

1.The present application has been filed under Section 483 of theBharatiya Nagrik Suraksha Sanhita, 2023 (erstwhile Section 439 of the Codeof Criminal Procedure, 1973) seeking grant of regular bail in respect of FIRNo. 187/2022 registered under Sections 22/25/29 of the Narcotic Drugs andPsychotropic Substances Act, 1985,[1]instituted at Police Station CrimeBranch.

2.A copy of the Status Report filed by the Respondent has been handedover across the Board and is taken on record.

3.In brief, the case of the prosecution is as follows:

3.1.On 26[th]August, 2022, SI Om Prakash along with HC Mahipal, on

1 “the NDPS Act”

information received about drug traffickers in Delhi from P.S. CrimeBranch, went to Punjab Bagh Bus Stop, Moti Nagar. There, an informerdisclosed that one Mr. Rohan Malik @ Billi, resident of Ramesh Nagar, issupplying Crystal MDMA and LSD papers in Delhi. He further revealed thatMr. Rohan would be supplying huge quantity of the said contraband around10:15 PM to 10:30 PM on the same day. This information was conveyed tothe ACP/ANTF, Crime Branch who directed Inspector Jai Bhagwan toconstitute team and conduct raid.

3.2.Thereafter, SI Om Prakash reached the location and asked fewpersons that were present to be public witnesses, however, they denied citingtheir own reasons and no notice could be served on such persons as theiridentities could not be ascertained. At the instance of the informer, theApplicant was apprehended. He was informed about his legal rights and anotice under Section 50 of the NDPS Act was served upon him, to which hegave his written refusal to be searched before Gazetted Officer orMagistrate. His search was conducted and two zip locked transparentpolyethene pouches were recovered from him. Both the bags were checkedusing field testing kit and MDMA, weighing 12.60 Grams and 28 sheets ofLSD were recovered. The weight of the LSD was found to be 0.30 Grams,excluding the weight of the pouch, and 0.51 Grams after weighing with thepouch. The transparent pouches were taken into police possession throughseizure memo after sealing and marking them.

3.3.Thereafter, complaint along with the seized case property and copyof seizure memos were sent to the P.S. Crime Branch for registration of theFIR with the direction to hand over the case property to SHO/Crime Branchfor compliance of Section 55 of the NDPS Act. Subsequently, the FIR in

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question was registered and the Applicant was arrested on 27[th]August,2022.

3.4.During the investigation, the Applicant disclosed that he procured thepsychotropic substances from one Mr. Jasneet Singh @ Sahib, resident ofGurudwara Road, Naraina and supplied it to his friend namely, Mr. YashGupta, resident of Paschim Vihar.

3.5.Subsequently, on 29[th]August, 2022, Mr. Yash Gupta was alsoarrested at the instance of the Applicant. The disclosure statements of boththe accused were recorded and 2 days police custody remand was obtainedfrom the Trial Court. During the remand, Mr. Jasneet Singh was alsoarrested.

ARGUMENTS ADVANCED BY THE PARTIES

4.In this background, the Applicant urges that he has been falselyimplicated and advances the following:

4.1.The procedural requirement under Section 52A of the NDPS Act hasnot been complied with. The absence of an inventory provided by theprosecution constitutes violation of Section 52A(2) of the NDPS Act.Since no inventory was prepared for the seized contraband, the question ofobtaining certification of such an inventory for correctness by Magistratedoes not arise. This lack of compliance undermines the integrity of theprimary evidence as the inventory certificate thereof constitutes the primaryevidence of the offence.

4.2.Additionally, the alleged recovery from the Applicant was made froma bus stand which is busy and populated location and it is highlyimprobable that no public witnesses were present at the time of the seizure.This along with the absence of videographic or photographic evidence of the

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alleged recovery, raises substantial doubts regarding the legitimacy of theseizure.

4.3.The Applicant has been in judicial custody for more than 2 years andhe is pursuing his education and is committed to self-improvement. He hasno criminal antecedents and undertakes to abide every condition that may beimposed for grant of bail.

5.Per contra, the APP for the State strongly opposes the Applicant’srequest for bail and makes the following submissions:

5.1.In the present case, chargesheet and supplemental chargesheet hasalready been filed and the case is pending trial.

5.2.The FSL report dated 29[th]May, 2023 confirmed that the substancesrecovered were Methamphetamine and Lysergic Acid Diethylamide and thequantity of the recovered contraband falls under the commercial quantity asdefined under the NDPS Act.

5.3.Since the quantity recovered is commercial, the conditions underSection 37 must be strictly complied, without which bail cannot be grantedto the Applicant. This mandate, in the facts of the present case, has not beenfulfilled by the Applicant.

5.4.The procedure delineated under Sections 50 and 52A of the Act forseizure of commercial quantity of contraband has been duly complied with.These grounds are immaterial at the stage of consideration of bail.

5.5.The delay in trial cannot be attributed to the prosecution as the co-accused have time and again sought for adjournment before the Trial Court.

5.6.He further, expresses concern that the Applicant may engage insimilar crimes if bail is granted.

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ANALYSIS AND FINDINGS

6.The Court has considered the facts of the case and the contentionsadvanced by the parties. While evaluating bail application several factorsmust be considered, including whether there is prima facie case orreasonable grounds to believe the accused has committed the offence, thelikelihood of the accused repeating the offence, the nature and seriousness ofthe accusation, the severity of the potential punishment upon conviction, therisk of the accused absconding or fleeing if granted bail and the reasonableapprehension of witnesses being intimidated by the accused.

7.In the instant matter, the contraband recovered from the Applicantcomprises 0.3 Grams of LSD and 12.60 Kilograms of MDMA. Although thequantity of MDMA recovered falls within the intermediate category, theamount of LSD recovered qualifies as commercial quantity under theNDPS Act. As result, the provisions of Section 37 of the NDPS Act areattracted, which impose stringent conditions for the grant of bail.

8.Under Section 37, the Court can grant bail only after hearing thepublic prosecutor and upon being satisfied of the following twin conditions:(i) that there are reasonable grounds to believe that the accused is not guiltyof the offence, and (ii) that the accused is not likely to commit any offencewhile on bail. The Supreme Court has consistently held that negation of bailis the rule and its grant is an exception under Section 37(1)(b)(ii).[2]In theinstant matter, given the recovery of contraband is commercial quantity,the rigours of Section 37 must be strictly applied. Consequently, the twinconditions mandated under the provision must be carefully examined to

2 State of M.P. v. Kajda, (2001) 7 SCC 673

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determine whether the Applicant satisfies the statutory requirements for thegrant of bail.

9.The Court must now examine the grounds raised by the Applicant todetermine whether the conditions under Section 37 are satisfactorily met.

The Test of Reasonable Grounds to Believe that the Accused is Not Guiltyof the Offence

Absence of Independent Witnesses

10.The Applicant has raised the issue of the prosecution’s failure toinclude independent witnesses during the search and seizure operations,despite the Applicant being apprehended in public place, namely the KirtiNagar Bus Stand, Najafgarh Road, Delhi, at around 10:30 PM. TheApplicant argues that the lack of independent witnesses’ casts doubt on thefairness and credibility of the prosecution’s case.

11.It is to be noted that the raiding party, acting on information receivedat 9:20 PM on 26[th]August, 2022, had sufficient time to secure independentwitnesses before conducting the raid. The prosecution’s explanation thatattempts were made but that none agreed to co-operate, and left withoutdisclosing their names or addresses, appears mechanical and unconvincing.This Court is of the view that the failure to associate independent witnessesin public area like Kirti Nagar Bus Stand could have been avoided withgreater diligence. Such omissions, while not necessarily fatal to theprosecution’s case, do impact the transparency and credibility of the searchand seizure process and merit scrutiny at the stage of considering bail.

12.This Court in Bantu v. State Government of NCT of Delhi,[3]took

3 2024 SCC OnLine Del 4671

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note of the frequent and mechanical explanations offered for the non-joinderof independent witnesses in cases involving the seizure of contraband. It wasobserved that the absence of independent witnesses, especially in crowdedpublic places, warrants attention. This practice undermines the transparencyof the seizure procedure and weakens the evidentiary value of the recovery.In the present case, the failure to associate independent witnesses, despitethe raid occurring in public location, indicates procedural irregularity inthe search process. As noted above, while procedural lapses of this naturemay not outrightly invalidate the prosecution’s case, they diminish thereliability of the evidence collected, which becomes relevant at the bailstage, in order to ensure that right of the accused is not unduly curtailed.Omission of Videography and Photography

13.The Applicant also points out the prosecution’s failure to produce anyvideographic or photographic evidence of the alleged recovery.

14.The significance of video recording the recovery process especially incases involving commercial quantities of narcotic substances, has beenconsistently emphasized by the Supreme Court in several judgments. TheCourt has highlighted that the video or photographic documentation of suchrecoveries serves as critical safeguard, ensuring transparency andaccountability in the handling of evidence. It is viewed as an essential stepto protect the rights of the accused and maintain the integrity of theinvestigation. In this regard, the Supreme Court has emphasized that ininstances where videography or photography has not been undertaken, theprosecution must provide clear and valid justifications for such omissions.[4]

4 See also: Shafhi Mohd. v. State of H.P., (2018) 5 SCC 311

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These judicial observations were made even prior to the enactment of themandatory videography and photography requirements under the BNSS,illustrating that the Court has long recognized the vital role of suchdocumentation in ensuring the fair administration of justice. This view hasalso been expressed by this Court in the case of Bantu.

15.In the present case, the prosecution has failed to offer any adequate orconvincing justification for not implementing the essential measure ofvideographyorphotographyduringtherecoveryprocess.Suchdocumentation is not merely procedural formality, but safeguard toensure transparency and fairness, particularly in cases involving narcoticsubstances. The absence of this safeguard leaves the recovery process opento question, as there is no independent evidence to corroborate the police’saccount. This omission, coupled with the lack of independent witnesses,casts shadow over the credibility of the evidence and increases thepotential for prejudice against the accused. Taken together, these lapsesweigh in favour of granting bail to the Applicant.

16.Thus, the non-compliance with the above-mentioned safeguards i.e.,non-joinder of witnesses and absence of videography and photography, bythe prosecution undermines their case and prima facie satisfies the firstcondition set out under Section 37(1)(b)(ii), in favour of the Applicant.No Likelihood of Committing an Offence on BailCriminal antecedents

17.As regards the second condition of Section 37(1)(b)(ii), it isimperative for the Court to be satisfied that the Applicant is not likely tocommit an offence while on bail. This condition also serves as criticalsafeguard to ensure that granting bail does not result in any potential risk to

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public safety or impede the administration of justice.

18.In the instant case, it has been submitted that the Applicant has nopriorcriminalantecedentsandhasactivelyparticipatedinseveralcompetitive examinations, demonstrating constructive approach and adesire to lead law-abiding life. The absence of any prior criminal record isa significant factor, as it distinguishes the Applicant from habitual or repeatoffenders. This lack of antecedents, coupled with evidence of proactiveeffort toward personal growth, supports the conclusion that the Applicant isunlikely to commit any offence while on bail.

Non-compliance of Section 52A of the NDPS Act

19.In addition to the aforesaid, the Applicant has also urged the non-compliance with Section 52A of the NDPS Act, asserting that the samewould significantly undermine the primary evidence in the case. Reliance inthis regard is placed on the decision rendered in Union of India v. MohanLal and Anr.[5]which observed that the procedure under Section 52A of theNDPS Act is mandatory and not directory. Further, the Applicant has alsorelied upon Yusuf @ Alias v. State[6]to urge that if an inventory of the seizedcontraband was neither prepared nor certified by Magistrate, thecontraband and any samples drawn therefrom cannot be regarded as validevidence, therefore, the absence of evidence renders the trial itself vitiated.

20.Section 52A outlines the mandatory procedure for the disposal ofseized narcotics and psychotropic substances. However, the Supreme Courtin its recent judgment in Narcotics Control Bureau v. Kashif,[7]clarified that

5 (2016) 3 SCC 379

6 2023 SCC Online SC 13287 2024 SCC OnLine SC 38487 2024 SCC OnLine SC 3848

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any delay or lapse in complying with Section 52A would not by itself renderthe evidence inadmissible. In this case, the Supreme Court was faced with asituation where the High Court allowed the bail application solely on theground of belated compliance of Section 52A and without recording thefindings as mandated under Section 37 of the Act. While rendering thisdecision, the Supreme Court considered the decisions of Yusuf @ Asifwherein conviction was set aside on the finding of non-compliance ofSection 52A by relying on Mohan Lal. It was ultimately concluded thatnon-compliance of Section 52A neither vitiates the trial affecting convictionnor can be the only ground to seek bail.

21.In view of the Supreme Court’s ruling, the Applicant’s argument ofnon-compliance with Section 52A cannot be the sole ground for grantinghim bail. However, as examined above, both essential requirements underSection 37(1)(b)(ii)—reasonable grounds to believe the Applicant is notguilty of the offence and an assurance that the Applicant is not likely tocommit an offence while on bail—have been satisfactorily met.

Delay in Trial

22.Additionally, it is pertinent to note that the Applicant has been incustody since 27[th]August, 2022. Although the chargesheet and supplementalhas been filed, the charges are yet to be framed and there is no indicationthat the trial will conclude in the foreseeable future. While the prosecutionhas argued that the delay in the trial cannot be solely attributed to them, thefact remains that the Applicant has already been incarcerated for over twoand half years before the beginning of trial.

23.The right to life and personal liberty, enshrined under Article 21 ofthe Constitution of India, 1950, cannot be rendered nugatory by unwarranted

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delays in the judicial process. The prolonged incarceration undermines thefundamental right to personal liberty. In such circumstances, the protectionof liberty must take precedence over the statutory restrictions imposed underSection 37(1)(b)(ii) of the NDPS Act. The extended period of custody,combined with the delay in trial, justifies the Applicant’s plea forconditional liberty through the grant of bail, thereby balancing the rights ofthe accused with the requirements of justice.[8]

CONCLUSION

24.In view of the foregoing discussion, this Court is of the opinion thatthe Applicant has satisfied the statutory conditions for grant of bail on thegrounds of absence of witnesses and prolonged delay in trial.

25.The Applicant is, therefore, directed to be released on bail onfurnishing personal bond for sum of INR 50,000/- with two sureties ofthe like amount, subject to the satisfaction of the Trial Court/Duty MM/LinkMM, on the following conditions:

a.The Applicant shall not directly or indirectly make any inducement,threat or promise to any person acquainted with the facts of the case ortamper with the evidence of the case, in any manner whatsoever;

b.The Applicant shall under no circumstance leave the boundaries of thecountry without the permission of the Trial Court;

c.The Applicant shall appear before the Trial Court as and whendirected;

d.The Applicant shall provide the address where he would be residingafter his release and shall not change the address without informing the

8 See also: Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109

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concerned IO/SHO;

e.The Applicant shall, upon his release, give his mobile number to theconcerned IO/SHO and shall keep his mobile phone switched on at all times.26.In the event of there being any FIR/DD entry/complaint lodgedagainst the Applicant, it would be open to the State to seek redressal byfiling an application seeking cancellation of bail.

27.It is clarified that any observations made in the present order are forthe purpose of deciding the present bail application and shall not influencethe outcome of the trial and also not be taken as an expression of opinion onthe merits of the case.

28.With the above directions, the present application, is allowed.

JANUARY 13, 2025

d.negi

SANJEEV NARULA, J

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