Delhi High Court – Orders
Deepak Khurana vs Narcotics Control Bhreau on 23 July, 2025
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2119/2025 & CRL.M.A. 17325/2025
DEEPAK KHURANA .....Applicant
Through: Mr. M.L. Yadav, Mr.
Harish Chand, Mr. Anant
Chittoria, Mr. Prashant &
Mr. Deepak Kumar, Advs.
versus
NARCOTICS CONTROL BHREAU .....Respondent
Through: Mr. Arun Khatri, SSC
(through VC) with Ms.
Tracy Sebastian, Mr. Sahil
Khurana & Ms. Anoushka
Bhalla, Advs.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 23.07.2025
1. The present application is filed seeking regular bail in Case
No. VIII/38/DZU/2022, for offences under Sections 8(c)/ 21(c)/
22(c)/ 23/ 25/ 27A/ 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (‘NDPS Act‘).
2. It is alleged that on the basis of secret information, on
26.04.2022, a vehicle was intercepted at Sarai Kale Khan and a
recovery of 1 Kg of Heroin was effected from the same. The said
car was being driven by the accused Imran who revealed his
involvement in drug trafficking on enquiry. The accused Imran
was apprehended and on the basis of his disclosure, a recovery of
34.250 Kg of Heroin, 3.650 Kg psychotropic substance and 2.75
Kg of Acetic Anhydride was effected from a godown.
3. The accused Imran further disclosed the names of certain
persons who were involved in the trafficking of heroin. One of
the accused persons whose name was disclosed during the course
of investigation, namely, Razi Haider Zaidi, on being
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interrogated, disclosed that he had given 50Kg of Heroin to the
applicant on the direction of one Shahid.
4. It is the case of the prosecution that the applicant gave a
voluntary statement under Section 67 of the NDPS Act that he
along with the accused Sahid used to purchase Heroin from
accused Razi Haider Zaidi, Avtar Singh and Mohd. Imran. It is
alleged that various dates and places in which the transactions
took place were also disclosed by the applicant.
5. The learned counsel for the applicant submits that the
applicant has been falsely implicated in the present case. He
submits that at this stage, the only incriminating evidence against
the applicant is the disclosure statement of the co-accused and his
own disclosure statement, which are not admissible in evidence.
6. He submits that the co-accused persons, namely, Abdul
Rab and Azeem Ahmad have already been admitted on bail by
orders dated 03.04.2025 and 27.03.2025 in Bail Appln. Nos.
592/2025 and 540/2025 respectively passed by the coordinate
Benches of this Court. He submits that the co-accused were
admitted on bail after noting that the bar under Section 37 of the
NDPS Act will not come in the way when the accused has
already suffered a long incarceration.
7. He submits that the applicant has been in custody since
31.05.2022 and none of the witnesses have been examined till
now.
8. He states that the family of the applicant is financially
dependant on him and he is the sole bread earner in his family.
9. The learned Senior Standing Counsel (‘SSC’) for the
Narcotics Control Bureau states that the application, being, Bail
Appl. 3717/2023, filed by the accused on an earlier occasion was
dismissed by a detailed order passed by this Court on 21.03.2024.
BAIL APPLN. 2119/2025 Page 2 of 8
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10. He submits that the bail was rejected specifically noting
that the applicant has not been able to overcome the embargo
under Section 37 of the NDPS Act.
11. He further submits that the applicant has also been
involved in two more cases under the NDPS Act and his
antecedents do not entitle him for any relief as there is every
likelihood of him committing an offence once released on bail.
12. He further submits that the co-accused Azeem Ahmed was
found to have transferred a sum of ₹6,00,000/- into the account
of the applicant’s wife, which clearly reflects the financial
transactions between the accused persons. He states that the co-
accused persons disclosed that Heroin was supplied to the
applicant on multiple occasions and the vehicle of the applicant
was also found present at the toll plaza on the same dates. He
submits that there is sufficient evidence to corroborate the
involvement of the applicant in the offence.
13. I have heard the counsel and perused the record.
14. It is settled law that the Court, while considering the
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. At the same time, the period of incarceration is also a
relevant factor that is to be considered.
15. It is unequivocally established that, to be granted bail, the
accused charged with offence under the NDPS Act must fulfil the
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conditions stipulated in Section 37 of the NDPS Act.
16. It is argued that the rigours of Section 37 of the NDPS Act
are attracted in the present case as there is recovery of
commercial quantity of contraband.
17. Much emphasis has been laid by the learned SSC on the
rigours prescribed in Section 37 of the NDPS Act as well as the
dismissal of the applicant’s bail application by this Court on
merits.
18. It is pertinent to note that the bail application of the
applicant was dismissed way back on 21.03.2024. It is well
settled that an accused cannot be kept in custody for an indefinite
period of time, and the subsequent bail application can be
considered on its own merits, on the change in circumstances.
The Hon’ble Apex Court in a catena of cases has observed that
every day spent in custody can provide a new cause of action for
filing a bail application under certain circumstances. In the
present case, more than one year has passed since the dismissal
of the application and the trial has not proceeded.
19. Despite the applicant having spent more than three years in
custody, only charges have been framed till now. It is pointed out
that none of the thirty-three prosecution witnesses have been
examined till now either.
20. It is trite 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
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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
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
31st December 2021, over 5,54,034 prisoners were lodged in
jails against total capacity of 4,25,069 lakhs in the country20.
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
Court in A Convict Prisoner v. State21 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
criminal”22 (also see Donald Clemmer’s ‘The Prison
Community’ published in 194023). 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)
21. 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.
22. 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)
23. 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.
24. 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 delay in the completion of the trial.
25. It is also relevant to note that pursuant to the dismissal of
the applicant’s bail application, two of the co-accused persons
have already been admitted on bail by a Coordinate Bench of this
Court on account of the delay in trial.
26. It is also pertinent to note that at this stage, the only
material against the applicant is the disclosure statements of the
BAIL APPLN. 2119/2025 Page 6 of 8
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co-accused persons, the presence of the applicant’s vehicle at the
toll plaza on the dates when he allegedly received supply of
Heroin and a financial transaction between co-accused Azeem
and the wife of the applicant. While granting bail to the co-
accused Azeem, the Coordinate Bench has taken note of the
explanation that the money was transferred for purchase of a car.
Prima facie, the mere presence of the applicant’s vehicle at the
toll plaza on its own does not show the applicant’s complicity in
drug trafficking. While the veracity of the disclosure statements
along with the other evidence against the applicant will be seen
during the course of the trial, at this stage, when the applicant has
already spent substantial time in incarceration, the relief of bail
ought not to be denied to the applicant.
27. Insofar as the antecedents of the applicant are concerned, it
is pointed out that out of the two prior criminal involvements of
the applicant under NDPS Act, he has been already acquitted in
one case and granted bail in the other.
28. It is stated that the applicant is the sole bead earner in his
family and his family members are facing financial hardships due
to the applicant’s incarceration.
29. In view of the aforesaid discussion, in the opinion of this
Court, the applicant has made out a prima facie case for grant of
bail.
30. The applicant is directed to be released on bail on
furnishing a personal bond for a sum of ₹20,000/- 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 evidenceBAIL APPLN. 2119/2025 Page 7 of 8
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of the case, in any manner whatsoever;
b. The applicant shall under no circumstance leave 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;
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.
31. 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.
32. 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.
33. The bail application is allowed in the aforementioned
terms.
AMIT MAHAJAN, J
JULY 23, 2025/”SS”
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