Delhi High Court – Orders
Dharmender Yadav vs State Of Nct Of Delhi on 5 March, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 3813/2024
DHARMENDER YADAV .....Petitioner
Through: Mr. Pratyush Prasanna and Ms.
Saumya Yadav, Advocates.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Amit Ahlawat, APP.
SI Ankur Yadav, PS: Crime Branch.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 05.03.2025
1. The present application filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 20231 (formerly Section 439 of the Code of
Criminal Procedure, 19732) seeks regular bail in proceedings arising from
FIR No. 175/2020 registered under Section 20/25 of the Narcotic Drugs and
Psychotropic Substances Act, 19853 at P.S. Crime Branch. Subsequently, a
chargesheet was filed and the Applicant has been charged with offences
under Sections 20/25/29 of the NDPS Act.
2. Briefly, the case of the prosecution is as follows:
2.1. On 19th November, 2020, acting on secret information, Mr.
Dharmender Yadav (the Applicant) was apprehended near Indraprastha Park1
“BNSS”
2
“Cr.P.C.”
BAIL APPLN. 3813/2024 Page 1 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:41
Bus Stand, Ring Road, Delhi with one truck bearing registration No. DL-
1GC-1080, containing 315 Kg of ganja in 23 plastic bags. All the recovered
plastic bags, containing ganja, were seized through seizure memo.
Accordingly, the instant FIR was registered and investigation was taken up.
2.2. On the same day, the Applicant was arrested, and a site plan was
prepared at the instance of ASI Pramod. During interrogation, the Applicant
disclosed that he worked as a professional driver and had struggled
financially during the lockdown. He claimed that he was approached by one
Mr. Naveen Mishra, who offered him a lucrative sum to transport ganja
from Orissa to Delhi NCR. As per the Applicant’s disclosure, Mr. Naveen
Mishra instructed him to procure the contraband from Mr. Rahul Bahera in
Orissa and deliver it to him.
2.3. On 20th November, 2020, both Mr. Naveen Mishra and Mr. Rahul
Bahera were arrested. During their apprehension, 20.30 kg of ganja was
found in the exclusive possession of Mr. Naveen Mishra, while 20.70 kg
was recovered from Mr. Rahul Bahera. The seized contraband was
documented through a seizure memo and deposited in the Malkhana of the
P.S. Crime Branch.
2.4. Upon sustained interrogation, accused Mr. Naveen Mishra revealed
that he would purchase ganja from Mr. Rahul Bahera at lower prices and
transport it through the Applicant for resale in Delhi NCR at higher rates.
Mr. Rahul Bahera further disclosed that on 20th November, 2020, he had
travelled to Delhi to collect payment for the contraband delivered to the
Applicant on behalf of Mr. Naveen Mishra.
3
“the NDPS Act”
BAIL APPLN. 3813/2024 Page 2 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:41
2.5. The investigation uncovered financial transactions between the
accused persons. It was found that Mr. Naveen Mishra had transferred INR
39,600 to Mr. Rahul Bahera’s bank account and an additional INR 19,000
via Paytm. The details of these transactions were duly collected.
2.6. The CDR and CAF of the mobile numbers associated with all three
accused were obtained and analyzed. The mobile number xxxxxxx389,
recovered from the Applicant, was registered in his name. Similarly,
numbers xxxxxxx395 and xxxxxxx409 were retrieved from Mr. Rahul
Bahera, while numbers xxxxxxx861 and xxxxxxx079 were found in the
possession of Mr. Naveen Mishra, all of which were registered under their
respective names.
2.7. The CDR analysis confirmed that on 11th November, 2020 at
00:39:04, the Applicant and Mr. Rahul Bahera were at Katak, Orissa which
is the same location from where the seized contraband was loaded onto the
truck. Furthermore, on 19th November, 2020 at 09:10 AM, the mobile
locations of Mr. Rahul Bahera and Mr. Naveen Mishra were traced to IGI
Airport, Delhi, corroborating Mr. Bahera’s statement that he had come to
collect payment from Mr. Mishra.
2.8. Upon completion of the investigation, a charge sheet was filed against
all three accused before the Court. Additionally, the FSL report was
submitted through a supplementary charge sheet. All the three accused
persons are in judicial custody.
3. Against such background, the Applicant urges that he was falsely
implicated and advances the following in support of his request for bail:
3.1. The Applicant was arrested on 19th November, 2020 and has remained
in custody for more than 4 years.
BAIL APPLN. 3813/2024 Page 3 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:41
3.2. There has been non-compliance of Section 52A of the NDPS Act as
the sampling was conducted on the spot. Even when sampling was later
carried out before the Magistrate, samples were not taken from all the seized
contraband.
3.3. The seized contraband was not forwarded to the officer in charge of
the police station as mandated under Sections 52 and 53 of the NDPS Act.
Additionally, the application for sampling before the Magistrate was moved
by an officer who lacked the requisite authority. As a result, the entire
process of search, seizure, and sampling is questionable, casting doubt on
the prosecution’s case.
3.4. The Applicant is not a beneficiary of the financial transactions, which
exclusively took place between the co-accused. There is no evidence on
record to establish that the Applicant derived any financial gain from the
alleged offence.
3.5. No independent witnesses were present during the entire procedure of
search and seizure. Furthermore, the fact that the sampling was conducted at
the recovery site and that the truck was subsequently driven by a police
officer raises concerns. The alleged contraband was transported separately in
a private vehicle by the police, further casting doubt on the integrity of the
recovery process, especially in the absence of independent witnesses.
3.6. No videographic or photographic evidence was recorded during the
alleged recovery. Despite the recovery taking place in a public area, no
CCTV footage has been produced on record.
3.7. Out of the 23 prosecution witnesses, only 1 has been examined thus
far. The delay in examining witnesses and the slow progress of the trial are
not attributable to the Applicant.
BAIL APPLN. 3813/2024 Page 4 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:42
3.8. The co-accused have already been granted bail by this Court through
an order dated 27th November, 2024. The Applicant, therefore, seeks bail on
the grounds of parity. He undertakes to comply with all conditions that may
be imposed if bail is granted.
4. On the other hand, Mr. Amit Ahlawat, APP for the State strongly
opposes the present bail application and urges the following:
4.1. The offence in question is of a grave and serious nature, involving a
quantity of contraband far exceeding the commercial quantity threshold.
4.2. As per CDR details and the bank account details, all three accused
were in communication with one another. The CDR of the Applicant’s
mobile phone further confirms his presence in Orissa on 11th November,
2020.
4.3. The Applicant’s earlier request for bail has been rejected by the Trial
Court through order dated 4th October, 2024.
4.4. The recovery of contraband was conducted in full compliance with
the procedures prescribed under the NDPS Act. The samples were drawn
before the Magistrate on 26th November, 2020, in accordance with Section
52A of the Act, and there was no undue delay in the process.
4.5. The Applicant has a prior conviction under the NDPS Act in
Jharkhand. At the time of committing the present offence, he was on parole
in connection with that case. Consequently, the rigors of Section 37 of the
NDPS Act are attracted and therefore, the Applicant’s request for bail ought
to be rejected.
5. The Court has considered the facts and the submissions advanced.
The Applicant was arrest in the present FIR on 19th November, 2020 and as
per the latest Nominal Roll, as on 30th January, 2025, the Applicant has been
BAIL APPLN. 3813/2024 Page 5 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:42
in custody for a period of 4 years, 2 months and 11 days. While the quantity
of the recovered contraband, 315 kg of ganja, exceeds the commercial
threshold of 20 kg, thereby attracting the rigors of Section 37 of the NDPS
Act, the issue of prolonged incarceration and delay in trial assumes
significance before assessing the twin conditions under the said provision.
6. In the present matter, investigation is complete, chargesheet has been
filed, charges have been framed and the matter is at the stage of prosecution
evidence. Considering the fact that out of 23 cited witnesses, only 1 witness
has been examined so far, indicates that the trial will conclude in the
foreseeable future. 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 Supreme Court in
Rabi Prakash v. State of Odisha4 has held that in such circumstances, the
protection of liberty must take precedence over the statutory restrictions
imposed under Section 37(1)(b)(ii) of the NDPS Act. This principle was
reaffirmed by the Supreme Court in Ankur Chaudhary v. State of Madhya
Pradesh.5 The extended period of custody, combined with the delay in trial,
justifies the Applicant’s plea for grant of bail, thereby balancing the rights of
the accused with the requirements of justice.
7. Even on merits, the Applicant satisfies the first condition under
Section 37(1)(b)(ii) of the NDPS Act, which requires the Court to be
satisfied that there are reasonable grounds to believe that he is not guilty of
the offence. The non-joinder of independent witnesses during the search and
4
2023 SCC OnLine SC 1109
5
2024 SCC OnLine SC 2730
BAIL APPLN. 3813/2024 Page 6 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:42
seizure proceedings casts doubts on the credibility of the prosecution’s case.
This Court in Bantu v. State Government of NCT of Delhi,6 examined the
recurring and mechanical explanations offered by prosecuting agencies for
the non-joinder of independent witnesses in cases involving the seizure of
contraband under the NDPS Act. It was observed that the failure to associate
public witnesses, particularly in seizures conducted at busy public places,
raises concerns regarding the transparency of the recovery process and
weakens the evidentiary value of the seizure. In the present case, despite the
raid occurring at a public location i.e. at Indraprastha Park Bus Stand, Ring
Road, no effort was made to document the identities of those who allegedly
refused to join the proceedings, nor has the prosecution furnished any
explanation for this omission.
8. Moreover, the omission of videographic or photographic evidence at
the time of recovery further diminishes the reliability of the recovery of the
contraband. The significance of video recording the recovery process
especially in cases involving commercial quantities of narcotic substances,
has been emphasized by the Supreme Court. The Court has highlighted that
the video or photographic documentation of such recoveries serves as a
critical safeguard, ensuring transparency and accountability in the handling
of evidence. It is viewed as an essential step to protect the rights of the
accused and maintain the integrity of the investigation. In this regard, the
Supreme Court in the case of Shafhi Mohd. v. State of H.P.7 has
emphasized that the video or photographic documentation of a crime scene,
serves as a critical safeguard, ensuring transparency and accountability in
6
2024 SCC OnLine Del 4671
7
(2018) 5 SCC 311
BAIL APPLN. 3813/2024 Page 7 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:42
the handling of evidence.
9. Further, in Bantu, this Court observed that in instances where
videography or photography has not been undertaken, the prosecution may
provide clear and valid justifications for such omissions. In the present case,
the prosecution has failed to offer any justification for not implementing the
essential measure of videography or photography during the recovery
process. The absence of this safeguard leaves the recovery process open to
question, as there is no independent evidence to corroborate the police’s
account. This omission, coupled with the lack of independent witnesses,
casts a shadow over the credibility of the evidence and increases the
potential for prejudice against the accused.
10. As regards the second condition under Section 37(1)(b)(ii), which
requires the Court to be satisfied that the accused is not likely to commit any
offence while on bail, it is relevant to consider the Applicant’s antecedents
in conjunction with the broader constitutional principles governing personal
liberty. This Court acknowledges that the Applicant has a prior conviction in
a case registered under the NDPS Act in Jharkhand. However, as discussed
earlier, the prolonged period of incarceration coupled with the delay in trial
warrants a nuanced approach that prioritizes the fundamental right to
personal liberty.
11. In view of the foregoing, this Court is inclined to enlarge the
Applicant on bail subject to stringent conditions. The Applicant is, therefore,
directed to be released on bail on furnishing a personal bond for a sum of
INR 50,000/- with two sureties of the like amount, subject to the satisfaction
of the Trial Court/Duty MM, on the following conditions:
BAIL APPLN. 3813/2024 Page 8 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:42
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 NCT of Delhi
without the permission of the IO;
c. The Applicant shall appear before the 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;
f. The Applicant shall report to the concerned PS on first and third
Monday of every month.
12. In the event of there being any FIR/DD entry / complaint lodged
against the Applicant, it would be open to the State to seek redressal by
filing an application seeking cancellation of bail.
13. 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.
14. The bail application is allowed in the afore-mentioned terms.
SANJEEV NARULA, J
MARCH 5, 2025/d.negi
BAIL APPLN. 3813/2024 Page 9 of 9
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 11/03/2025 at 21:26:42