Sarfaraj vs The State (Nct Of Delhi) & Anr.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 06.05.2026
Pronounced on: 19.05.2026
Uploaded on: 19.05.2026
+ BAIL APPLN. 1455/2026
SARFARAJ .....Petitioner
Through: Mr. Ankit Sharma, Advocate.
versus
THE STATE (NCT OF DELHI) & ANR. .....Respondents
Through: Mr. Tarang Srivastava, APP with
SI Sohan Thakur.
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
J U D G M E N T
1. By way of the present application under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”], the applicant seeks
regular bail in connection with FIR No. 194/2023 dated 17.02.2023,
registered at Police Station Narela, Outer North District, Delhi, for the
offence punishable under Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 [“the NDPS Act”].
2. I have heard Mr. Ankit Sharma, learned counsel for the applicant,
and Mr. Tarang Srivastava, learned Additional Public Prosecutor for the
State. The prosecution has filed a status report, which is on record.
ROSECUTION ASE
A. P C
3. The prosecution case, as emerging from the status report, is that, on
16.02.2023, secret information was received to the effect that one Faijan
@ Sharukh was involved in the supply of ganja and would deliver a
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Signed By:PARUL
VASHIST
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consignment thereof to his associate, i.e. the applicant herein. Pursuant
thereto, a raid was conducted near Police Colony, Sector A-5, Narela, and
at about 07:40 PM, the applicant and co-accused Faijan were
apprehended while carrying a heavy white plastic katta and a backpack.
Notices under Section 50 of the NDPS Act were served upon them, and a
search was thereafter conducted.
4. Upon search of the applicant, a heavy white plastic katta was
recovered from his possession, containing four packets wrapped in khakhi
tape and one transparent polythene packet. Upon opening the said
packets, a grassy substance was found which, based on its colour, smell,
and physical properties, appeared to be ganja . The four packets weighed
5.270 kilograms, 5.184 kilograms, 5.560 kilograms, and 5.550 kilograms
respectively, while the fifth packet weighed 1 kilogram [including the
weight of the polythene]. The recovered ganja was thereafter sealed and
marked as “X”. Search of co-accused Faijan resulted in the recovery of
one packet of ganja weighing 5.098 kilograms, which was sealed and
marked as “Y”. The accused persons were arrested on 17.02.2023.
5. Upon completion of the investigation, a chargesheet was filed
under Sections 20/29 of the NDPS Act.
B. S UBMISSIONS BY L EARNED C OUNSEL FOR THE P ARTIES
6. In support of the present application, Mr. Sharma submitted that,
although the alleged recovery from the applicant comprises a commercial
quantity of ganja , i.e. 22.564 kilograms, the seizure was neither effected
in the presence of any independent witness, nor documented by way of
photography or videography. He places reliance upon the judgment of a
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1
coordinate Bench of this Court in Bantu v. State Govt. of NCT of Delhi ,
to contend that, in such circumstances, the benefit of doubt, at the stage of
consideration of bail, ought to enure to the accused.
7. Mr. Sharma further submitted that the applicant is a person with
disability, and has been in custody for over 3 years and 2 months. Co-
accused Faijan has been enlarged on bail by the Special Court vide order
2
dated 02.06.2023 . He submitted that, although prosecution evidence has
commenced, only 9 out of 17 witnesses have been examined thus far, and
the trial is likely to take considerable time to conclude.
8. Mr. Srivastava, on the other hand, submitted that the total recovery
effected in the present case is 27.632 kilograms of ganja and, therefore,
the rigours of Section 37 of the NDPS Act are attracted. Further, the
Forensic Science Laboratory report dated 10.05.2023 confirms the
substance to be ganja . As regards the photography/videography of the
seizure, he submitted that the issue is a matter for trial and does not
warrant consideration at this stage.
C. A NALYSIS
9. At the outset, it may be noted that the present case concerns the
alleged recovery of a commercial quantity of contraband, being over 20
kilograms of ganja . The rigours of Section 37 of the NDPS Act are,
therefore, attracted. It is, however, also well settled that the restrictions
contained in Section 37 cannot be applied in a manner that defeats the
constitutional guarantee under Article 21 of the Constitution. In a series
1
2024 SCC OnLine Del 4671 [hereinafter, “ Bantu ”].
2
The Special Court noted that the alleged recovery from Faijan was 5.098 kilograms of ganja , which
falls within the intermediate category, and therefore, the rigours of Section 37 of the NDPS Act were
not applicable to him.
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3
of decisions, including Mohd. Muslim v. State (NCT of Delhi) , Dheeraj
4
Kumar Shukla v. State of Uttar Pradesh , and Rabi Prakash v. State of
5
Odisha , the Supreme Court has emphasised that prolonged incarceration
at the pre-trial stage, even in cases under special statutes containing
stringent bail conditions, would be violative of the right to life and liberty
guaranteed under Article 21 of the Constitution. In Mohd. Muslim , the
Supreme Court also clarified that the satisfaction contemplated under
Section 37 is only prima facie in nature, and that the Court is not
required, at the stage of bail, to arrive at a finding of the likelihood of
guilt of the accused beyond reasonable doubt. More recently, in State of
6
Punjab v. Sukhwinder Singh @ Gora , the Supreme Court reiterated that
the considerations relevant to Section 37 are required to be assessed
holistically, while ensuring that the constitutional protection under Article
21 is not rendered illusory.
10. Applying the aforesaid principles to the facts of the present case,
the Nominal Roll placed on record shows that as on 22.04.2026, the
applicant had remained in judicial custody for a period of 3 years, 2
months, and 6 days. As of now, therefore, he has been in custody for over
3 years and 3 months. Although prosecution evidence has commenced,
only 9 out of 17 witnesses have yet been examined, which makes the
completion of proceedings within a short time frame unlikely.
11. As regards the merits of the case, it is an admitted position that the
alleged seizure was neither conducted in the presence of public witnesses
3
(2023) 18 SCC 166 [hereinafter, “ Mohd. Muslim ”].
4
2023 SCC OnLine SC 918, paragraph 3.
5
2023 SCC OnLine SC 1109, paragraph 4.
6
2026 SCC OnLine SC 671.
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nor documented through photography or videography. In Bantu , this
Court has held that even prior to the introduction of such requirements
under the BNSS, these circumstances constitute a relevant consideration
at the stage of adjudicating an application for bail. The relevant
observations of the Court are as follows:
“ 72. Almost all individuals carry a mobile phone compatible for
videography these days. From the above cases, it is clear that it is
open for the prosecution to furnish reasons to explain and justify the
absence of videography and photography in a case. Mere absence of
videography and photography of the recovery does not nullify the
case of the prosecution, however, the same can in some
circumstances be sufficient to create a doubt as to the veracity of the
prosecution’s case.
73. The Hon’ble Apex Court, in a catena of judgments has held that
the more severe the punishment, greater has to be the care taken to
ensure that all the safeguards provided in the statute are
scrupulously followed.
74. While a little play in the joint has to be afforded to investigating
agencies to enable them to discharge their duties, the authorities also
have to be held accountable to prevent abuse of law. In cases where
the factum of recovery of the contraband is supported only by official
witnesses, lack of videography and photography, especially in the
absence of independent witnesses, casts a doubt on the recovery of
the contraband, unless the same is justified by cogent reasons.
75. As already noted above, in the case of absence of independent
witnesses, it is to be seen whether any prejudice is caused to the
accused person and testimonies of the police officials can be believed
even without corroboration if the same is found to be credible. This
Court is of the opinion that the same rationale would extend to cases
where there is no photography and videography as well, specially
when the same has been deliberated and commented upon by Courts
on numerious occasions.
76. The sufficiency of the explanation, if any, is to be tested during the
course of the trial after the prosecution has led its evidence, however,
in the opinion of this Court, the absence of any independent evidence
to support recovery (presence of public witnesses, videography or
photography) is a relevant factor while considering applications for
grant of bail as the same casts a shadow over the very fulcrum of the
7
case. ”
7
Emphasis supplied.
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12. In Sunday Okeke Ugwuoke v. State of NCT of Delhi , which, as in
the present case, involved a seizure effected prior to the enactment of the
BNSS, a coordinate Bench of this Court reiterated the same position in
the following terms:
16. It is the case of the prosecution that the said raid was conducted
“
during daylight hours i.e. around 05.00 - 05.30 P.M. in a public place.
Despite this, no public witnesses have joined nor any cogent
explanation has been offered for the same. While the absence of
independent witnesses may not be fatal to the case of the prosecution,
it impacts the transparency and reliability of the search and seizure
process, particularly at the stage of bail, where the Court must assess
whether a prima facie case has been made out against the accused.
Reference in this regard may be had to the decision of the Coordinate
Bench of this Court in Beneth Chukuwuddi (supra) as well as Bantu
v. State Government of NCT of Delhi . Likewise, Hon’ble Supreme
9
Court in Shafhi Mohd. v. State of H.P. has also emphasised that the
video or photographic documentation of a crime scene, serves as a
critical safeguard, ensuring transparency and accountability in the
handling of evidence, which is evidently missing in the present case.
The following observations from Beneth Chukuwuddi (supra) could
beneficially be referred to:
“8. It is to be noted that the raiding party, acting on information
received on 10th March, 2023, had sufficient time to secure
independent witnesses before conducting the raid. However, no
reasonable explanation has been provided for this omission.
Since the alleged recovery took place in a public area, where
securing independent witnesses would not have posed any
practical difficulty, this lapse reflects a lack of diligence on the
part of the investigating agency. While the absence of
independent witnesses may not be fatal to the prosecution’s
case per se, it does impact the transparency and reliability of
the search and seizure process, particularly at the bail stage,
where the Court must assess whether a prima facie case has
been made out against the accused.
9. This Court in Bantu v. State Government of NCT of Delhi ,
took note of the frequent and mechanical explanations offered
for the non-joinder of independent witnesses in cases involving
the seizure of contraband. It was observed that the absence of
8
BAIL APPLN. 1939/2025, decided on 02.12.2025.
9
(2018) 5 SCC 311.
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independent witnesses, especially in crowded public places,
warrants careful judicial scrutiny. This practice undermines
the transparency of the seizure procedure and weakens the
evidentiary value of the recovery. In the present case, the
failure to associate independent witnesses, despite the raid
occurring in a public location, indicates a lapse in the search
process. While such lapses do not, by themselves, render the
recovery invalid, they diminish the evidentiary value of the
seizure and introduce reasonable doubt about the integrity of
the prosecution’s case, which becomes particularly relevant in
cases under the NDPS Act, where strict compliance with
procedural safeguards is imperative given the severe
consequences involved.
xxx xxx xxx
11. The Supreme Court, in the case of Shafhi Mohd. v. State of
H.P.8 emphasised that the video or photographic
documentation of a crime scene, serves as a critical safeguard,
ensuring transparency and accountability in the handling of
evidence. Further, in Bantu, this Court observed that in
instances where videography or photography has not been
undertaken, the prosecution can provide clear and valid
justifications for such omissions. These judicial observations
were made even prior to the enactment of the mandatory
videography and photography requirements under the BNSS,
illustrating that the Court has recognized the vital role of such
documentation in ensuring the fair administration of justice.
xxx xxx xxx
19. Additionally, it is pertinent to note that the Applicant has
been in custody for 2 years. Although the chargesheet has been
filed, the charges are yet to be framed and there is no
indication that the trial will conclude in the foreseeable future.
20. The right to life and personal liberty, enshrined under Article
21 of the Constitution of India, 1950, cannot be rendered
nugatory by unwarranted delays in the judicial process. The
prolonged incarceration undermines the fundamental right to
personal liberty. The extended period of custody, combined
with the delay in trial, justifies the Applicant’s plea for
conditional liberty through the grant of bail, thereby balancing
the rights of the accused with the requirements of justice. ”
(emphasis supplied) ”
13. In the present case, although the alleged seizure was effected near a
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Police Colony at about 07:40 PM, no public witnesses were associated.
Further, the seizure was neither photographed nor videographed. The
aforesaid binding authorities thus support the applicant.
14. The status report reflects that the applicant has six prior
involvements, of which he has been acquitted in one, and none relate to
offences under the NDPS Act. In any event, such prior involvements do
not, per se , warrant denial of bail, as held by the Supreme Court in
10
Prabhakar Tewari v. State of Uttar Pradesh and Another . The applicant
is also a person with disability, which factor deserves consideration at the
stage of bail.
ONCLUSION
D. C
15. For the aforesaid reasons, it is directed that the applicant be
released on bail in connection with FIR No. 194/2023 dated 17.02.2023,
registered at Police Station Narela, Outer North District, Delhi, subject to
furnishing a bail bond in the sum of Rs. 50,000/-, with one surety of the
like amount, to the satisfaction of the concerned Trial Court/Duty
Magistrate, and further subject to the following conditions:
a. The applicant shall appear before the learned Special Court on each
and every date of hearing.
b. If the applicant has a passport, he shall surrender the same to the
concerned Trial Court, and shall not leave the country without the
prior permission of the concerned Trial Court.
c. The applicant shall ordinarily reside at the address as per prison
records, and shall not change the address without informing the
10
(2020) 11 SCC 648.
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concerned Investigating Officer [“IO”]/ Station House Officer
[“SHO”].
d. The applicant shall furnish his mobile number to the concerned
IO/SHO, and shall ensure that the said mobile number remains
operational and switched on at all times. The mobile number shall
not be changed, nor shall the phone be switched off, without prior
intimation to the IO/SHO.
e. The applicant shall not, directly or indirectly, contact, visit, nor
offer any inducement, threat, or promise to any of the prosecution
witnesses or other persons acquainted with the facts of the case.
f. The applicant shall not, directly or indirectly, tamper with evidence
nor otherwise indulge in any act or omission that would prejudice
the proceedings in the pending trial.
g. The applicant shall not commit any offence during the pendency of
the proceedings.
16. The application stands disposed of in the above terms.
17. It is clarified that the observations made herein are solely for the
purpose of adjudication of the present bail application, and shall not be
construed as an expression of opinion on the merits of the case, nor shall
they prejudice the rights and contentions of the parties at any stage of the
proceedings.
18. A copy of this judgment be sent to the concerned Jail
Superintendent for information and necessary compliance.
PRATEEK JALAN, J
MAY 19, 2026/ KA/
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Signed By:PARUL
VASHIST
Signing Date:19.05.2026
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