Delhi High Court – Orders
Brijesh Kumar vs State Nct Of Delhi & Anr on 22 July, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 839/2025
BRIJESH KUMAR ..... Applicant
Through: Mr. Chandrika Prasad
Mishra, AOR with Mr.
Bhupendra Singh, Mr.
Kartik Chourasiya, Mr.
Ankit Panday, Ms.
Yashaswini Goel, Ms.
Harshita Bhardwaj & Ms.
Prashasti Singh, Advs.
versus
STATE NCT OF DELHI
& ANR. .....Respondents
Through: Ms. Richa Dhawan, APP
for the State
Inspector Santosh Kumar,
PS- Kashmere Gate
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 22.07.2025
1. The present application is filed seeking regular bail in FIR
No. 261/2024 dated 09.05.2024, registered at Police Station
Kashmeri Gate for the offence punishable under Section 22/25 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(‘NDPS Act‘).
2. Briefly stated, on 09.05.2024, on the basis of a secret
information pertaining to the transport of restricted medicine, a
raiding team was constituted and the applicant was apprehended.
Thereafter, the auto which the applicant was driving was
searched and a recovery of 2.16 kg of restricted medicine, that is,
30 Packets (18000 tablets of Alprazolam) was effected. It is
alleged that thereafter, on the instance of the applicant, the co-
accused Amar Singh was apprehended and upon his search, a
recovery of 2.16 Kg of Alprazolam tablets was made from a
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polythene bag being carried by him.
3. On 11.05.2024, a raid was conducted at the instance of co-
accused Amar Singh, pursuant to which, two persons namely,
Faiz Ahmad and Umar, were apprehended. Thereafter, three
gatta peti containing a total of 180000 tablets of Alprazolam
weighing 21.6 Kg was found, and the same were recovered.
During interrogation, the co-accused persons- Faiz Ahmad and
Umar disclosed that they had stored restricted medicine at a shop
situated at Gali No. 05 Loco Colony, Aligarh, Uttar Pradesh.
4. Thereafter, a raid was conducted at the said shop and a
recovery of 3,12,000 restricted tablets of Alprazolam, weighing
approximately 39.960 Kg was made.
5. Subsequently, during the course of the investigation,
several other accused persons were arrested and recoveries of
huge quantities of restricted medications such as Alprazolam and
Tramadol tablets were effected.
6. The learned counsel for the applicant submits that the
applicant is innocent and has been falsely implicated in the
present case.
7. He submits that the applicant is merely an auto driver and
he had no knowledge as to the contents of the polythene bag
from which the recovery was effected and he was merely
transporting the same.
8. He submits that the earlier Investigating Officer in the
present case has been suspended and the Head Constable who
recorded the secret information has been dismissed on the
allegation of extortion. He states that the same suggests that the
investigation suffers from grave infirmities.
9. He submits that even though the alleged recovery
happened in a public place, there are no independent witnesses
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and no endeavour was made by the prosecution to photograph or
videotape the recovery either.
10. He further submits that there is no money trail that links
the applicant to the present offence and rigours of Section 37 of
the NDPS Act are not attracted against the applicant.
11. He submits that the applicant was arrested on 09.05.2024
and has been in custody since then, despite which, the matter is
still at the stage of arguments on charge.
12. He further submits that co-accused Koshinder, who was
apprehended on the basis of disclosure of co-accused Umar and
from whom a recovery of 6000 tablets of Tramadol was made,
has already been enlarged on bail by this Court.
13. Per contra, the learned Additional Public Prosecutor for
the State vehemently opposes the grant of any relief to the
applicant and submits that the present case involves recovery of
commercial quantity, and therefore, rigours of Section 37 of the
NDPS Act are attracted against the applicants.
14. I have heard the learned counsel appearing for the parties
and perused the record.
15. 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.
16. It is unequivocally established that, to be granted bail, the
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accused charged with offence under the NDPS Act must fulfil the
conditions stipulated in Section 37 of the NDPS Act. Section 37
of the NDPS Act reads as under:
“37. Offences to be cognizable and non-bailable.–(1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under Section 19 or Section 24 or Section
27-A and also for offences involving commercial
quantity shall be released on bail or on his own
bond unless–
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor oppose the
application, the court is satisfied that there
are reasonable grounds for believing that he
is not guilty of such offence and that he is not
likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b)
of sub-section (1) are in addition to the limitations under the
Code of Criminal Procedure, 1973 (2 of 1974), or any other
law for the time being in force, on granting of bail.”
17. It is the case of the prosecution that on the basis of secret
information, the applicant was apprehended and a recovery of
2.16 Kg of Aprazolam tablets was effected from the auto which
was being driven by him. It is alleged that at the instance of the
applicant, certain other accused persons were arrested and
recoveries of restricted medication was effected from them.
18. It is argued on behalf of the learned counsel for the
applicant that the applicant is an auto driver and he had no
knowledge about the contents of the polythene bag. It is further
argued that doubt is cast on recovery of contraband as no
independent witness was joined by the prosecution and no
photography or videography was done, even though the applicant
was apprehended in a public place on the basis of secret
information.
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19. Undoubtedly, the case of the prosecution cannot be
rejected merely on account of the case being tethered on the
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.
20. 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.
21. 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.
22. The FIR mentions that although passersby and other auto
rikshaw drivers were asked to join investigation, however, they
refused due to personal reasons. 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 during the course of the trial, at this stage, the benefit
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cannot be denied to the applicant.
23. Much emphasis has been laid by the prosecution on the
fact that since commercial quantity of contraband was recovered
from the applicant, therefore, the rigours of Section 37 of the
NDPS Act are attracted against him.
24. The Hon’ble Apex Court, in the case of Union of India v.
Shiv Shanker Kesari : (2007) 7 SCC 798, has observed as
under:
“11. The court while considering the application for bail
with reference to Section 37 of the Act is not called upon to
record a finding of not guilty. It is for the limited purpose
essentially confined to the question of releasing the accused
on bail that the court is called upon to see if there are
reasonable grounds for believing that the accused is not
guilty and records its satisfaction about the existence of such
grounds. But the court has not to consider the matter as if it
is pronouncing a judgment of acquittal and recording a
finding of not guilty.
12. Additionally, the court has to record a finding that while
on bail the accused is not likely to commit any offence and
there should also exist some materials to come to such a
conclusion.”
25. Prima facie, considering that the applicant belongs to the
poor strata of the society, in the absence of independent
corroboration or any financial trail linking the applicant to the
crime, at this stage, the possibility of the applicant being engaged
to merely transport the polythene bag (from which the recovery
was effected) and him not having exact knowledge of the
contents of the same cannot be ruled out.
26. Furthermore, insofar as the allegation in relation to certain
recoveries having been effected on the basis of the disclosure of
the applicant from other co-accused is concerned, the veracity of
such allegations will be tested during the course of the trial and
cannot be ascertained at this stage.
27. Thus, while the case involves a huge recovery of
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contraband, in the opinion of this Court, at this stage, there are
reasonable grounds to doubt the credibility of the case of the
prosecution against the applicant.
28. Moreover, the manner in which the investigation has been
carried out in the present case also casts a doubt on the
prosecution’s case.
29. It is pointed out that the Investigating Officer assigned to
the present case previously has been suspended and the Head
Constable, who had recorded the secret information, has been
dismissed on the allegations of extortion.
30. It is important to note that one co-accused namely
Koshinder has been enlarged on regular bail by this Court by
order dated 16.01.2025, in BAIL APPLN. 3541/2024 essentially
on account of the conduct of the prosecution, which led this
Court to opine that prima facie there were reasonable grounds to
believe that the accused was not guilty. The said co-accused was
sought to be implicated on the allegations that some restricted
medication was recovered from a bag being carried by him,
however, the CCTV footage of the alleged spot of recovery
showed that he was not carrying any bag at all. It was also noted
that the prosecution had not taken any prompt steps to preserve
the relevant CCTV footage.
31. It is also relevant to note that in the present case, the
matter is at the stage of arguments on charge. The prosecution
has citied 48 prosecution witnesses and their examination will
take a long time. The applicant has been in custody since
09.05.2024.
32. 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
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punishment.
33. It is also stated that the applicant has minor children to
take care of.
34. The applicant is stated to be of clean antecedents. Thus, in
the opinion of this Court, the applicant is not likely to commit
any offence whilst on bail.
35. In view of the aforesaid factors, this Court is of the
opinion that the applicant has made out a prima facie case for
grant of bail.
36. The applicant is, therefore, directed to be released on bail
(if not in custody in any other case) 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 evidence of the case, in any
manner whatsoever;
b. The applicant shall under no circumstance leave
the country without the permission of the 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 to the
concerned IO/SHO and he shall not change the
address without informing the concerned
IO/SHO;
e. The applicant shall, upon his release, give his
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mobile number to the concerned IO and shall
keep his mobile phone switched on at all times.
37. In the event of there being any FIR/DD entry / complaint
lodged against the applicant; it would be open for the State to
seek redressal by filing an application seeking cancellation of
bail.
38. 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.
39. The present bail application is allowed in the
aforementioned terms.
40. All pending applications, if any, also stand disposed of.
AMIT MAHAJAN, J
JULY 22, 2025
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