Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 12, 2025
+ BAIL APPLN. 1552/2025
VIVEK KUMAR .....Applicant
Through: Mr. Vatan Tripathi, Adv.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Aman Usman, APP
for the State.
SI Jagbir, Anti Narcotics
Cell North.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral)
1. The present application is filed by the applicant seeking
regular bail in FIR No. 192/2023 dated 25.03.2023, registered at
Police Station Subzi Mandi, for offences under Sections 20/25/29
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(‘ NDPS Act ’).
2. The FIR was registered pursuant to a secret information
received on 24.03.2023 that two persons, namely, Sonu Kumar
and the applicant are involved in drug trafficking activities and
would be coming in an auto rikshaw of one Mehboob Ali to
Subzi Mandi area to supply a huge consignment of Ganja
between 09:30 PM to 10:30 PM. It is alleged that a raiding party
was constituted and the accused persons were apprehended in an
auto rikshaw being driven by co-accused Mehboob Ali. On
search, 20 kg of Ganja was recovered from the foot rest of
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passenger seat of the Auto Rickshaw. During the course of
interrogation, the disclosure statements made by the accused
persons allegedly led to a further recovery of 290 kg of Ganja
(that is, 125 kg and 165 kg of Ganja respectively from two
different locations).
3. The learned counsel for the applicant submits that
applicant has been falsely implicated in the present case and he is
innocent.
4. He submits that despite the fact that the recovery was
made from an auto rikshaw in a public place, no public witness
joined the search and seizure. He further submits that there is also
no CCTV, video footage or photography to show that the
recovery was in fact made from the applicant either. He submits
that even if the case of the prosecution is taken at the highest, the
applicant was merely a passenger in the auto rickshaw.
5. He submits that the applicant has been in custody since
25.03.2023 and charges are yet to be framed in the present case.
6. Per contra , the learned Additional Public Prosecutor for
the State submits that large quantity of contraband has been
recovered and thus the bar of Section 37 of the NDPS Act would
apply. He stresses that recoveries were also made on the
disclosure of the applicant and there is CDR connectivity
between the applicant and other accused persons. He further
submits that the bail application of co-accused Mehboob Ali has
already been dismissed by this Court.
7. I have heard the counsel and perused the record.
8. It is settled law that the Court, while considering the
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application for grant of bail, has to keep certain factors in mind,
such as, whether there is a prima facie case or reasonable ground
to believe that the accused has committed the offence;
circumstances which are peculiar to the accused; likelihood of
the offence being repeated; the nature and gravity of the
accusation; severity of the punishment in the event of conviction;
the danger of the accused absconding or fleeing if released on
bail; reasonable apprehension of the witnesses being threatened;
etc.
9. It is unequivocally established that, to be granted bail, the
accused charged with offence under the NDPS Act must fulfill
the conditions stipulated in Section 37 of the NDPS Act.
10. It is the case of the prosecution that the applicant was
travelling in an Auto Rikshaw from which a recovery of 20 kg of
Ganja was made. Allegedly, the disclosure of the applicant and
other accused persons also led to a further recovery of 290 kg of
Ganja.
11. Pertinently, even though the recovery from the auto
rikshaw was effected in a busy public place on the basis of secret
information, no public witnesses were joined by the prosecution
and no photography or videography was conducted to
corroborate the recovery either. Similarly, despite sufficient
opportunity, no public persons were associated by the
prosecution during the recoveries which were allegedly effected
on the basis of disclosure either.
12. Undoubtedly, the case of the prosecution cannot be
rejected merely on account of the case being tethered on the
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testimonies of official witnesses and non-examination of
independent witnesses or absence of photography and
videography of the recovery. The same would not be fatal to the
prosecution’s case. Reliance on the testimonies of official
witnesses is sufficient to secure conviction once it is established
that the police witnesses have no animosity against the accused
person so as to falsely implicate him. The testimonies of the
official witnesses cannot be disregarded merely on account of
them being police officials.
13. However, it cannot be denied that the lack of independent
witnesses and photography or videography, in some
circumstances, casts a shadow over the case of the prosecution.
14. This Court in the case of Bantu v. State Govt of NCT of
Delhi : 2024: DHC: 5006 has observed that while the testimony
of independent witness is sufficient to secure conviction if the
same inspires confidence during the trial, however, lack of
independent witnesses in certain cases can cast a doubt as to the
credibility of the prosecution’s case. It was held that when the
Investigating Agency had sufficient time to prepare before the
raid was conducted, not finding the public witness and lack of
photography and videography in today’s time casts a doubt to the
credibility of the evidence.
15. In the present case, a mechanical explanation is provided
that although some persons were asked to join the investigation at
the time of the initial raid, however, they left after citing their
reasons. Peculiarly, an identical explanation is given for the
recoveries allegedly effected on basis of disclosures that the
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neighbours in the vicinity did not open their doors. While the
veracity of the explanation of the prosecution for non-joinder of
independent witnesses and for absence of photography and
videography will be tested by the Trial Court, at this stage, the
benefit cannot be denied to the applicant.
16. It is argued on behalf of the prosecution that the applicant
has CDR connectivity with the co-accused persons, however,
prima facie , in the absence of any supporting material, the same
alone is insufficient to link the applicant to the contraband or
recovery.
17. The prosecution has also laid much emphasis on the
rigours of Section 37 of the NDPS Act being attracted owing to
the huge recovery effected in the present case. It is imperative to
note that the applicant has been in custody since 25.03.2023 and
the charges are yet to be framed in the present case despite a
lapse of more than two and a half years since the applicant’s
arrest. It is well-settled that grant of bail on account of delay in
trial and long period of incarceration cannot be said to be fettered
by the embargo under Section 37 of the NDPS Act. The Hon’ble
Apex Court, in the case of Mohd. Muslim v. State (NCT of
Delhi) : 2023 SCC OnLine SC 352 has observed as under:
“ 21…. Grant of bail on ground of undue delay in trial,
cannot be said to be fettered by Section 37 of the Act, given
the imperative of Section 436A which is applicable to
offences under the NDPS Act too (ref. Satender Kumar
Antil supra). Having regard to these factors the court is of
the opinion that in the facts of this case, the appellant
deserves to be enlarged on bail.
22. Before parting, it would be important to reflect that laws
which impose stringent conditions for grant of bail, may be
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necessary in public interest; yet, if trials are not concluded
in time, the injustice wrecked on the individual is
immeasurable. Jails are overcrowded and their living
conditions, more often than not, appalling. According to the
Union Home Ministry's response to Parliament, the National
Crime Records Bureau had recorded that as on
st
31 December 2021, over 5,54,034 prisoners were lodged in
20
jails against total capacity of 4,25,069 lakhs in the country .
Of these 122,852 were convicts; the rest 4,27,165 were
undertrials.
23. The danger of unjust imprisonment, is that inmates are at
risk of “prisonisation” a term described by the Kerala High
21
Court in A Convict Prisoner v. State as “a radical
transformation” whereby the prisoner:
“loses his identity. He is known by a number. He
loses personal possessions. He has no personal
relationships. Psychological problems result from
loss of freedom, status, possessions, dignity any
autonomy of personal life. The inmate culture of
prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-
perception changes.”
24. There is a further danger of the prisoner turning to
crime, “as crime not only turns admirable, but the more
professional the crime, more honour is paid to the
22
criminal” (also see Donald Clemmer's ‘The Prison
23
Community’ published in 1940 ). Incarceration has further
deleterious effects - where the accused belongs to the
weakest economic strata : immediate loss of livelihood, and
in several cases, scattering of families as well as loss of
family bonds and alienation from society. The courts
therefore, have to be sensitive to these aspects (because in
the event of an acquittal, the loss to the accused is
irreparable), and ensure that trials - especially in cases,
where special laws enact stringent provisions, are taken up
and concluded speedily. ”
(emphasis supplied)
18. The Hon’ble Apex Court in the case of Man Mandal &
Anr. v. The State of West Bengal : SLP(CRL.) No. 8656/2023
had granted bail to the petitioner therein, in an FIR for offences
under the NDPS Act, on the ground that the accused had been
incarcerated for a period of almost two years and the trial was
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likely going to take a considerable amount of time.
19. The Hon’ble Apex Court in Rabi Prakash v. State of
Odisha : 2023 SCC OnLine SC 1109 , while granting bail to the
petitioner therein held as under :
“ 4. As regard to the twin conditions contained in Section 37
of the NDPS Act, learned counsel for the respondent - State
has been duly heard. Thus, the 1st condition stands complied
with. So far as the 2nd condition re: formation of opinion as
to whether there are reasonable grounds to believe that the
petitioner is not guilty, the same may not be formed at this
stage when he has already spent more than three and a half
years in custody. The prolonged incarceration, generally
militates against the most precious fundamental right
guaranteed under Article 21 of the Constitution and in such
a situation, the conditional liberty must override the
statutory embargo created under Section 37(1)(b)(ii) of the
NDPS Act. ”
(emphasis supplied)
20. 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 precedence over the statutory
restrictions under Section 37 of the NDPS Act.
21. It cannot be denied that the applicant has already spent
substantial period in custody and the trial is unlikely to conclude
in the near future. The object of jail is to secure the appearance of
the accused during the trial. The object is neither punitive nor
preventive and the deprivation of liberty has been considered as a
punishment.
22. Insofar as the dismissal of the bail applications filed by the
applicant Mehboob is concerned, the record indicates that the
first application filed by the co-accused Mehboob Ali was
dismissed as withdrawn on 03.10.2024. Subsequent bail
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applications filed by co-accused Mahboob Ali were dismissed by
order dated 08.04.2025 and 14.11.2025 after noting that there has
been no change in circumstance. In the opinion of this Court, the
same cannot be the sole ground for not entertaining the
application filed by the applicant.
23. The applicant is also stated to have clean antecedents, and
is thus not likely to commit any offence while on bail.
24. In view of the aforesaid discussion, the present application
is allowed and the applicant is directed to be released on bail (if
not in custody in any other case) on furnishing a personal bond
for a sum of ₹25,000/- with two sureties of the like amount,
subject to the satisfaction of the learned Trial Court, 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 or tamper with the evidence of
the case, in any manner whatsoever;
b. The applicant shall under no circumstance leave the
boundaries of the country without the permission of the
learned Trial Court;
c. The applicant shall appear before the learned Trial
Court as and when directed;
d. The applicant shall provide the address where he would
be residing after his release and shall not change the
address without informing the concerned IO/ SHO;
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e. The applicant shall, upon his release, give his mobile
number to the concerned IO/SHO and shall keep his
mobile phone switched on at all times.
25. In the event of there being any FIR/DD entry / complaint
lodged against the applicant, it would be open to the respondent
to seek redressal by filing an application seeking cancellation of
bail.
26. It is clarified that any observations made in the present
order are for the purpose of deciding the present bail application
and should not influence the outcome of the trial and also not be
taken as an expression of opinion on the merits of the case.
27. The bail application is allowed in the aforementioned
terms.
AMIT MAHAJAN, J
DECEMBER 12, 2025
“SK”
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