Delhi High Court: While hearing a bail application of the accused apprehended for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), the Single Judge Bench of Amit Mahajan, J, granted bail to the accused noting that he had already spent significant time in custody and a speedy trial did not seem to be a possibility. The Court also cited discrepancy in identification of contraband and non-joinder of independent witness as grounds for grant of bail.
Background
On the basis of secret information received, the applicant had been apprehended with MDMA, charas and ganja in his car and his flat. Acting upon information obtained from the applicant, 6 riders delivering contraband as well as the person identified as the source of the contraband had been arrested.
The applicant submitted that there was a discrepancy in the report of the field-testing kit and the Forensic Science Laboratory Report (‘FSL Report’). He submitted that as per the prosecution, in the field-testing kit, one of the contrabands seized from the applicant’s car tested positive for MDMA, however, the FSL report indicates that the seized contraband was methamphetamine, which casts doubt on the case of the prosecution.
He further submitted that even though the alleged recovery happened in a public place, there are no independent witnesses and no endeavour was made by the prosecution to photograph or videotape the alleged recovery either.
The accused also averred that he had been arrested on 22-8-2023 and only charges have been framed in the present case till date. He submitted that the trial is not likely to conclude in a timely manner.
Per contra, the prosecution had submitted that the accused is the kingpin of a drug network and is habitual offender having been previously convicted in an NDPS case in Haryana.
Analysis, Law and Decision
The Court noted that the instant bail application had been pushed on three main grounds- discrepancy in identification of one of the seized contrabands, non-joinder of independent witnesses or corroborative photographs or videography and delay in trial.
With regards to the issue of discrepancy in identification of contraband, the Court noted that at the Trial Court stage, the prosecution had stated that the field-testing kit contains few limited samples and highly synthesized salts cannot be detected from the same. The Court noted that while the veracity of this assertion could be verified only at the stage of trial, the absence of any material supporting such assertion meant that the benefit of the ex facie discrepancy has to be accorded to the accused.
The Court noted that while the prosecution’s case cannot be rejected merely because of absence of independent witnesses or photography and videography of the recovery, it could cast a shadow of doubt as to the credibility of the case. In the instant case, the accused had been apprehended within 1 hour of receiving secret information. No explanation was provided for not doing any photography or videography and only a mechanical explanation was provided that although attempts were made by the raiding party to join independent witnesses prior to apprehending the applicant and before his search as well, however, the said persons left by citing their reasons. The Court opined that the this made it evident that the non-joinder of independent witnesses was not on account of lack of individuals in the area at the hour.
The Court also referred to the case of Man Mandal v. State of West Bengal, SLP (CRL.) No. 8656 of 2023 wherein the Supreme Court had granted bail to an accused incarcerated for a period of two years and the trial was likely to take a considerable amount of time. The Court stated that,
“The object of jail is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment. Various courts have recognized that prolonged incarceration undermines the right to life, and liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedent over the statutory restrictions under Section 37 of the NDPS Act.”
In the instant case, the accused has been imprisoned since 2023 and the matter has been listed for 2026. Since it is evident that the trial is not likely to conducted in the near future, the applicant cannot be made to spend the entire trial in custody.
Accordingly, the Court held that considering the fact that the accused had already spent a considerable time in custody and had been able to make out a prima facie case for bail, prior conviction in Haryana would not be a hinderance.
Therefore, the accused was released on bail upon furnishing a personal bond for a sum of Rs. 25,000 and two sureties of the same amount.
[Sahil Sharma alias Maxx v. State Govt of NCT of Delhi, Bail Appl. No. 3068 of 2025, decided on 3-12-2025]
Advocates who appeared in this case:
For the Accused: Akshay Bhandari, Megha Saroa, Kushal Kumar, Anmol Sachdeva, Janak Raj Ambavat, Advocates
For the Respondent: Ritesh Kumar Bahri, APP