Delhi High Court
State (Govt. Of Nct) Of Delhi vs Amit on 3 July, 2025
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 29th April 2025
Pronounced on: 03rd July 2025
+ CRL.M.C. 3394/2024
STATE (GOVT. OF NCT) OF DELHI .....Petitioner
Through: Mr. Aman Usman, APP with SI
Kuldeep Singh, Special Cell.
versus
AMIT .....Respondent
Through: Ms. Stuti, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
RAVINDER DUDEJA, J.
1. The present petition under Section 482 read with Section 439(2)
of the Code of Criminal Procedure, 1973, has been filed assailing the
order dated 20.11.2023 passed by the Court of the Additional Sessions
Judge, Special Judge (NDPS), Patiala House Courts, New Delhi,
whereby bail was granted to the respondent in Sessions Case No.
409/2019 arising out of FIR No. 40/2019 registered under Sections
21/29/61/85 of the NDPS Act at PS Special Cell.
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Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27
2. Briefly stated the facts of the matter according to the
charge sheet it is that on 13.03.2019, the Special Cell received secret
information that accused Amit/Respondent and Ankush were
trafficking heroin on the directions of Mukesh and were to deliver a
consignment near Veer Apartments, Rohini. A raiding team was
constituted and, after making efforts to include public witnesses, both
accused were apprehended at the spot in a Hyundai Xcent car. After
informing them of their rights under Section 50 of the NDPS Act and
obtaining refusals in writing, a search was conducted. Two kilograms
of heroin were recovered from the bag of Ankush and another two
kilograms from beneath the driver’s seat of the car. Both were
arrested, their disclosure statements recorded, and the car along with
their mobile phones were seized.
3. Further investigation led to the arrest of Mukesh the same night
near Max Hospital, Haiderpur, following disclosures made by Amit
and Ankush. Although no drugs were recovered from Mukesh
personally, his role in the drug operation was confirmed, and he was
arrested after proper compliance with legal procedures. Voice call
interceptions between the accused and their associates were analysed,
and relevant incriminating calls were extracted, transcribed, and seized
as evidence. Mobile phone data, vehicle ownership documents, and
reports under Section 57 NDPS Act were duly prepared and
submitted. The heroin samples were sent to FSL, and permission for
voice sampling of the accused was obtained from the court.
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Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27
4. The learned APP for the state submitted that the trial court erred
in granting bail to the respondent on the ground of alleged non-
compliance with Section 52A of the NDPS Act. He placed reliance on
the recent decision of the Supreme Court in NCB v. Kashif, Criminal
appeal 5544/2024dated 20.12.2024, wherein it was held that non-
compliance with Section 52A NDPS act, does not by itself vitiate the
trial and is not a sufficient ground for granting bail. It was contended
that the trial court overlooked the settled legal position concerning
“conscious possession” of the contraband under Section 15 of the
NDPS Act, which is clearly made out from the material on record.
Furthermore it has been submitted, that minor procedural
irregularities, absent demonstrable prejudice, cannot justify release on
bail. He emphasized that in the present case, the seal on the seized
contraband was intact, ensuring the evidentiary sanctity of the
samples.
5. Per contra, learned counsel for the respondent opposed the
cancellation petition and submitted that the trial court had rightly
exercised its discretion in granting bail, having regard to material
procedural irregularities. She contended that the samples of the seized
contraband were not produced before the Magistrate in a timely
manner and were sent to the Forensic Science Laboratory only after an
inordinate delay of 1.5 years. In support, she relied upon the judgment
of the Supreme Court in Rabi Prakash v. State of Odisha, 2023 SCC
OnLine SC 1109, where the Court held that such procedural lapses can
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Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27
seriously undermine the prosecution’s case. She submitted that the
delay in sending samples adversely impacts the chain of custody and
the presumption under Section 54 of the NDPS Act. According to her,
the trial court was justified in taking these aspects into account while
granting bail. It was further contended that such procedural safeguards
are not empty formalities and have a direct bearing on the fairness of
the trial. The counsel therefore urged that no case is made out for
cancellation of bail.
6. Additionally, the learned counsel for the respondent submitted
that the accused has already undergone incarceration for a period of
four years and nine months. She has submitted that in Rabi Prakash
(supra), inter alia the top court observed that prolonged incarceration
of over three and a half years militates against the fundamental rights
guaranteed under Article 21 of the Constitution. It was held that in
such circumstances, conditional liberty must override the statutory
embargo imposed by Section 37 of the NDPS Act. Drawing a parallel
with the present case, it was submitted that the respondent’s continued
detention, in the face of such extended custody, would amount to a
violation of his fundamental rights. The learned counsel contended
that the bail was not granted solely on the basis of procedural delay,
but also on constitutional grounds, which the trial court had rightly
considered. Furthermore, it was emphasized that the respondent has
not misused the liberty granted to him, nor has there been any
complaint regarding violation of bail conditions.
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Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27
7. Rejection of bail in a non-bailable case at the initial stage and
the cancellation of bail already granted has to be considered and dealt
with on different basis. The power of cancellation of bail should be
exercised with care and circumspection as cancellation of bail
jeopardise the personal liberty of a person. Cancellation of bail should
not be done in a routine manner. Very cogent and overwhelming
circumstances are necessary for an order directing cancellation of bail
already granted. Generally speaking, the grounds for cancellation of
bail broadly are interference or attempt to interfere with due course of
administration of justice or evasion or attempt to evade the due course
of justice or abuse of the concession granted to the accused in any
manner. However, these instances are merely illustrative and not
exhaustive. Where it appears to the superior court that the court
granting bail acted on irrelevant material or there was non-application
of mind or where court does not take note of any statutory bar to grant
of bail, order for cancellation of bail can be made. The court
considering the application for cancellation of bail has to take note of
all relevant aspects.
8. Coming to the facts of the case, the respondent was taken into
custody on 13.03.2019 and according to the prosecution/state the
respondent was in possession of 2 kg heroin. The impugned order
noted that although samples were drawn by the seizing IO at the time
of seizure and sent to the FSL, the application under Section 52A of
the NDPS Act was filed much later on 29.10.2020, after a delay of
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Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27
over one and a half years, and was disposed of on 05.03.2021.
However, the samples drawn during the Section 52A proceedings
before the Magistrate were not sent to the FSL. As a result, the
samples which could have constituted primary evidence were not
subjected to forensic analysis.
9. In the case of Mohd. Muslim v. State (NCT of Delhi) SLP
(Crl.) 5530/2022, while considering a bail application in an offence
under the Narcotic Drugs and Psychotropic Substances Act, 1985,
held that in the case of prolonged incarceration, conditional liberty
would override the statutory embargo under Section 37 of the Act. In
the present case the respondent was taken into custody on 13.03.2019
and was granted bail on 20.11.2023, hence the respondent was in
custody for 4 years, 8 months and 7 days.
10. Similarly, in Jitender Jain vs. Crime Branch SLP (Crl.) No.
8900/2022 inter alia held as under:
“Xxx
3. Though it is a case of commercial quantity and allegations levelled
against the petitioner are serious in nature, but having regards to the
fact that he is in custody for 2 years and conclusion of trial will take
time, we are inclined to release the petitioner on bail.
4. The petitioner is, accordingly, ordered to be released on bail,
subject to his furnishing bail bonds to the satisfaction of the trial
court.”
11. A bare perusal of the case of Deepak Yadav Vs. State of U.P.
Criminal Appeal No. 861/2022, makes it evident that bail can only be
cancelled in the presence of supervening circumstances and not in a
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Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27
mechanical manner. The learned Sessions Judge has judiciously
exercised discretion, considering the prolonged period of incarceration
and the likelihood of delay in the conclusion of trial. There is no
material on record to suggest that the Trial Court relied on irrelevant
considerations or overlooked material facts, nor does the order appear
to be perverse. Furthermore, there is nothing to indicate that the
respondent has violated any condition of bail. Although there was a
procedural lapse in the filing of the application under Section 52A of
the NDPS Act and disposal of the seized contraband, the respondent
should not be made to suffer for such irregularity, and the grant of bail
was justified. Reliance can be placed on Rabi prakash (supra), Mohd.
Muslim (supra) as well as Jitender Jain (supra).
12. In view of the above facts and circumstances, the present
petition is dismissed.
RAVINDER DUDEJA, J.
JULY 03, 2025/na
CRL.M..C. 3394/2024 Page 7 of 7
Signature Not Verified
Digitally Signed
By:VAISHALI PRUTHI
Signing Date:03.07.2025
15:10:27