InBail Appln. 1257/2022 -DEL HC- Strict interpretation of NDPS bail conditions would exclude bail altogether: Delhi High Court grantsbail to accused in drug trafficking caseafter he was in custodyfor over 4 years
Justice Tushar Rao Gedela [31-10-2023]

Read Order: Gaurav Mehta V. Narcotics Control Bureau

Chahat Varma

New Delhi, November 2, 2023: The Delhi High Court has granted bail to an individual accused in a drug trafficking case who had spent more than four years in custody. The Court's decision was based on the observation that, in certain circumstances, an individual's liberty should take precedence over the restrictions imposed by Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The case in question involved a bail application filed on behalf of the applicant, seeking regular bail in a case under Sections 8(c)/21(c)/23/29 of the NDPS Act. The case originated from information received about two parcels suspected of containing narcotics and psychotropic tablets that were shipped to the USA and Canada by the applicant's company, Desi Global E Mart. Subsequent searches at DHL Express and the applicant's office/warehouse in West Patel Nagar, New Delhi, led to the recovery of a substantial quantity of tablets. During the investigation, the accused disclosed that the medicines found at his residence were supplied by a co-accused, and he had a limited role as a carrier in the alleged drug transactions. Despite these factors, the accused had remained in custody, with a regular bail application being dismissed by the trial court.

The single-judge bench of Justice Tushar Rao Gedelanoted that that while the co-accused individuals had already been granted regular bail, having spent varying durations in custody, ranging from 3.5 to 4 years, the applicant was the sole accused who remained in judicial custody.

The bench referred to Mohd. Muslim @ Hussain vs. State (NCT of Delhi) [LQ/SC/2023/357],wherein the Supreme Court had emphasized the importance of avoiding a strict and literal interpretation of the conditions specified in Section 37 of the NDPS Act. It was noted that such an interpretation would effectively result in a complete denial of bail, leading to punitive and unsanctioned preventive detention, which could run counter to constitutional principles. To address this concern and align with constitutional principles, the court had emphasized that the conditions for granting bail, as outlined in the NDPS Act, should be assessed in a manner that reasonably satisfies, on a prima facie basis, that the accused is not guilty.

In the said case, the court noted that the applicant had been in detention for a period exceeding 4 years and 2 months. Additionally, it was observed that despite a span of 5 years since the registration of the FIR, only the order on charges had been issued, and the actual framing of charges was still pending. The slow progression of the trial proceedings indicated that a substantial amount of time would be required to bring the case to a conclusion.

The court concluded that detention during the trial should not equate to pre-conviction incarceration and, as a result, granted bail to the applicant.