Delhi High Court
Seema vs State Nct Of Delhi on 17 January, 2025
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17.01.2025
+ BAIL APPLN. 3391/2024
SEEMA .....Petitioner
Through: Mr. U.A. Khan, Mr. Tushar
Upadhyaya, Advs.
versus
STATE NCT OF DELHI .....Respondent
Through: Ms. Priyanka Dalal, APP
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
: JASMEET SINGH, J (ORAL)
1. This is a petition filed under section 483 of BNSS seeking grant of
regular bail to the petitioner in FIR No. 500/2022, dated 06.07.2022,
registered at PS Narela Industrial Area under Section 21 of the NDPS Act.
The chargesheet has been filed under sections 21/25/29 of the NDPS Act.
2. As per the prosecution the facts are that on 06.07.2022 at around 1
P.M., a secret information was received to the ASI that a lady namely,
Shanno r/o E-1852, J.J. Colony, Bawana, Delhi is allegedly involved in the
distribution of heroin, both in bulk as well as retail quantities. Further,
Shanno would come in between 03-03:30 P.M. to deliver a consignment of
heroin to her customers.
3. After verifying the secret information, the ASI produced the secret
informer before the concerned police officials and the secret information
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was given to them. Thereafter, on instructions of the ACP a raiding team
was constituted, who took their position around 2:30 P.M. near the house of
Shanno. Some public persons were also asked to join the raiding team,
however they refused citing genuine reasons.
4. At the instance of the secret informer, at around 03 P.M., Shanno was
seen coming from her house and subsequently was apprehended at 03:05
PM. She informed the ASI that she was in the business of sale and purchase
of heroine both in bulk as well as retail quantities. Thereafter, she was duly
informed about her legal rights and the notice under Section 50 of the NDPS
Act was served upon her. At, 04:40 PM, the ACP arrived and Shanno was
searched by a woman Head Constable, namely, Ms. Sheenu, in her own
house where one black colour polythene was recovered which contained a
brown coloured powder. Upon testing the same it was found to be heroin,
weighing 150 gms.
5. During investigation, Shanno disclosed that she used to procure
heroin from a lady residing in J.J. Colony, Wazirpur. Thereafter, at the
instance of Shanno, a raid was conducted at House no. B-52, J.J. Colony,
Wazirpur, from where (1) the petitioner i.e. Seema r/o House no. C-318 J.J.
Colony, Wazirpur Delhi and (2) Meenu r/o House no. B-52, J.J. Colony,
Wazirpur were apprehended. On seeing the raiding team, the petitioner
threw a black colour polythene under the bed, which contained a brown
colour powder. On testing the same, it was found to be heroin weighing 300
grams.
6. Hence, the present petitioner was arrested.
7. Mr. Khan, learned counsel for the petitioner states that in the present
case, the notice under Section 42 NDPS is faulty as there is no approval of
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the ACP concerned. Further, despite the police officials having prior
information about the planned arrest of the petitioner, no videography or
photography was conducted during the search and recovery of the alleged
contraband.
8. He further submits that the petitioner is a lady and has been in custody
for two and a half years. In addition, there is no other pending case against
the petitioner pertaining to the NDPS Act.
9. He lastly submits that there is an inordinate delay in trial proceedings
as the prosecution has cited 21 witness, out of which only 4 have been
examined till date.
10. Per Contra, Ms. Dalal, learned APP states that in the present case, the
recovery has taken place from residence of the petitioner and the recovery is
of a commercial quantity. Hence, the petitioner will have to cross the rigors
of section 37 of NDPS Act.
11. She further states that the question of non-compliance of Section 42
of NDPS Act, if any, can only be seen during the trial.
12. She places reliance on the judgment of this Court in Chidi Berr
Nwayoga vs. State 2022 SCC OnLine Del 2558. The relevant para reads as
under:
“13. Contention of learned counsel that since no videography
was shot nor any CCTV footage collected, the case of the
prosecution be disbelieved deserved to be rejected. In case the
Police officers had parked their cars or made arrangements
for videography in advance there was a likelihood of the
appellant and the co-accused coming to know about the
proposed raid and thus the likelihood that they would not have
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gone ahead with the transaction at that place cannot be ruled
out thereby making the entire action of the raiding team
futile.”
13. Reliance is also placed by the learned APP on the judgment passed by
the Hon’ble Supreme Court in “Union of India through NCB vs. Mohd.
Nawaz Khan (2021) 10 SCC 100.
14. Lastly, she states that the trial is proceeding and 4 witnesses have
already been examined. In addition, delay in trial cannot be a sole ground for
grant of bail.
15. I have heard learned counsel for the parties.
16. In the present case, the fact whether section 42 of NDPS Act was
complied or not can only be determined after the evidence is over and the
trial has concluded.
17. However, I find some merit in the submissions of the learned counsel
for the petitioner that no videography/photography was conducted during the
search and recovery of the alleged contraband and there is an inordinate
delay in the proceedings pending before the learned trial court.
18. As regards, the issue pertaining to the need for
videography/photography during the search and seizure has been dealt by a
coordinate bench of this court in Bantu vs State (NCT of Delhi), 2024 SCC
online Del 4671. The operative portion of the said judgment reads as under:
“81. Realizing the need of changing time, the legislature has now
passed the Bharatiya Nagarik Suraksha Sanhita („BNSS‟). The
practice of photography and videography has now been made
mandatory. Even though it is contended that, at the relevant time,
the same was not mandatory, it cannot be denied that the CourtsDigitally Signed BAIL APPLN. 3391/2024 Page 4 of 10
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have, time and again, discarded the prosecution’s story and had
emphasized on the importance of independent witnesses and
additional evidence in the form of audiography and videography
when the same can easily be obtained due to advancement of
technology.
82. This legislative enhancement is designed to ensure a more
transparent and accountable approach in investigation. BNSS, with
its comprehensive emphasis on technological integration, heralds a
transformative era in criminal justice, promoting a system that is
not only transparent and accountable but also fundamentally
aligned with the principles of fairness and justice.
83. Photography and videography are universally accepted as the
best practices for better erudition and appreciation of the evidence.
The same ensures that the prosecution is able to better document
the recovery during the investigation. BNSS stipulates that the
proceedings of search and seizure shall be recorded through any
audio – video means preferably through a mobile phone. As noted
above, these days mobile phones are handy with almost everyone
especially, in a metropolitan city like Delhi.”
19. While reiterating the law laid down by this court in Bantu (supra),
another coordinate bench of this court in BAIL. APPLN. 2219/2024 titled
Sanjeev Kumar vs The state inter alia held as under:
“35. Counsel for applicant further contended that lack of
photography or videography despite being aware that no public
witness would be available would raises serious doubts about the
search and seizure conducted by the respondent authorities. In thisDigitally Signed BAIL APPLN. 3391/2024 Page 5 of 10
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regard, various views have been taken by Courts in India. A
coordinate Bench of this Court in Bantu v. State Govt of NCT of
Delhi 2024:DHC:5006 dealt with the issue of lack of photography
or videography in the absence of public witness and took note of
observations by the Apex Court in Shafhi Mohammad v. State of
Himachal Pradesh (2018) 5 SCC 311 emphasising role of audio-
visual technology in enhancing the efficacy and transparency in the
Police investigations. Further, in Bantu (supra) Court noted the
need of changing times as incorporated by the Bharatiya Nagarik
Suraksha Sanhita, 2023 [“BNSS”], where the practice of
photography and videography has now been made mandatory as
part of the investigation.
36. While the legitimacy of the search and seizure conducted by
respondent authorities will be tested during trial, absence of public
witnesses and photography/videography raises concern at this
stage.”
20. In the present case, the respondent was aware in advance that a raid
was planned at the petitioner’s residence on 09.07.2022, based on
information provided by Shanno to the concerned police officials on
06.07.2022. Acting on Shanno’s disclosure, the police officials conducted
the raid at the petitioner’s residence on 09.07.2022, however no
photography/videography was done during the search and seizure of the
contraband, despite the raid not being a surprise raid.
21. In addition, no cogent reasons have been provided by the
investigating agency as to why no videography/photography was done
during the search and recovery of the alleged contraband.
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22. Further, the courts have time and again held that the twin conditions
mentioned under section 37 of NDPS Act can be relaxed provided the
accused person has undergone a substantial period of incarceration and the
trial is unlikely to end in near future. In this regard, reliance is placed on the
judgment of the Hon’ble Supreme court in Mohd. Muslim vs State (NCT of
Delhi) 2023 SCC OnLine SC 352. The operative portion reads as under:
“13. When provisions of law curtail the right of an accused to
secure bail, and correspondingly fetter judicial discretion (like
Section 37 of the NDPS Act, in the present case), this court has
upheld them for conflating two competing values, i.e., the right of
the accused to enjoy freedom, based on the presumption of
innocence, and societal interest – as observed in Vaman Narain
Ghiya v. State of Rajasthan (“the concept of bail emerges from the
conflict between the police power to restrict liberty of a man who is
alleged to have committed a crime, and presumption of innocence
in favour of the alleged criminal….”). They are, at the same time,
upheld on the condition that the trial is concluded expeditiously.
The Constitution Bench in Kartar Singh v. State of Punjab made
observations to this effect. In Shaheen Welfare Association v. Union
of India again, this court expressed the same sentiment, namely that
when stringent provisions are enacted, curtailing the provisions of
bail, and restricting judicial discretion, it is on the basis that
investigation and trials would be concluded swiftly….
….
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 ofDigitally Signed BAIL APPLN. 3391/2024 Page 7 of 10
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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 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 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 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
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crime not only turns admirable, but the more professional the
crime, more honour is paid to the criminal” (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.”
23. In the present case, the petitioner has been in custody since
09.07.2022 and till date only 4 witnesses have been examined, out of the
arrayed 21 witnesses. It does not seem probable that the trial would be
concluded in the near future.
24. The rights under Article 21 of the Constitution of India are paramount
and every accused is entitled to a speedy trial. Further, there are 2 FIRs
pending against the petitioner, however, they are not pertaining to the NDPS
Act.
25. There is also the statement of PW-4 and a perusal of the statement
reveals that PW-4, who was part of the raiding team, has totally feigned
ignorance of the entire event in his cross examination.
26. For the said reasons, the petition is allowed and the petitioner is
directed to be released on regular bail subject to the following terms and
directions:
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(a) The petitioner shall furnish a personal bond in the sum of Rs.
10,000/- (Rupees Ten Thousand Only) with one surety of the
like amount to the satisfaction of the concerned Trial Court;
(b) The petitioner shall provide her mobile number to the
concerned Investigating Officer (IO), which shall be kept in
working condition and switched on at all times. The petitioner
shall also provide her permanent residential address and in case
of change of residential address or contact details, the petitioner
shall promptly inform the same to the concerned IO as well as
to the concerned Court;
(c) The petitioner shall not leave the country without permission of
the competent Court during the bail period and surrender her
passport, if any, at the time of release before the concerned
Court;
(d) The petitioner shall not directly/indirectly try to get in touch
with any prosecution witnesses or tamper with the evidence;
(e) The petitioner shall not indulge in any act or omission that is
unlawful or that would prejudice the proceedings in pending
cases, if any.
27. The petition is disposed of accordingly.
JASMEET SINGH, J
JANUARY 17, 2025/DM
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