Lack Of Independent Witnesses Can Cast A Doubt On Credibility Of Prosecution’s Case: Delhi High Court Grants Bail To NDPS Accused

The Delhi High Court has granted bail to an NDPS accused allegedly caught with 67g of MDMA holding that lack of independent witnesses and photography or videography, in some circumstances, casts a shadow over the case of the prosecution.

The Court was considering a Bail Application filed in a case registered for the offences punishable under Sections 20, 22, 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The bench of Justice Amit Mahajan held, "......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. 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."

The Applicant was represented by Advocate Akshay Bhandari while the Respondent was represented by Additional Public Prosecutor Ritesh Kumar Bahri.

Facts of the Case

It was alleged that on the basis of secret information, the Applicant was apprehended when he was travelling in a grey car towards Akhada, near Chaupal street. Allegedly, a recovery of 67g of MDMA was made from a polythene found in the Applicant’s pocket with further recovery of 133g of MDMA kept under the driver’s seat 1200g of charas kept in the glove box in a zip lock pouch and 2580g of ganja kept in a black polythene in the boot of the car, 52g of MDMA @ecstacy from his flat.

Counsel for the Applicant submitted that there is a discrepancy in the report of the field testing kit and FSL and that as per the prosecution, in the field testing kit, one of the contrabands seized from the Applicant’s car tested positive for MDMA, however, the FSL report indicates that the seized contraband was methamphetamine, which casts doubt on the case of the prosecution.

He submitted that even though the alleged recovery happened in a public place, there are no independent witnesses and no endeavour was made by the prosecution to photograph or videotape the alleged recovery either.

Reasoning By Court

The Court at the outset pointed out that the bail application has been pressed on essentially three grounds – discrepancy in identification of one of the seized contrabands, non-joinder of independent witnesses or corroborative photographs or videography and delay in trial.

It stated that the Prosecution's explanation that the field testing kit contains few limited samples and highly synthesized salts cannot be detected from the same, can only be tested during the course of trial, at this stage, in the absence of any supporting material to lend credence to the aforesaid assertion, the argument of the prosecution cannot be taken on a demurrer and the benefit of the ex facie discrepancy has to be accorded to the applicant, especially when the prosecution’s case against the applicant is essentially helmed on the recoveries effected from him.

"However, apart from MDMA, other contrabands have also been allegedly recovered from the possession of applicant and, therefore, the applicant cannot be admitted on bail solely for the said reason", the Court pointed out.

With respect to the another material against the Applicant which was stated to be the financial transactions of the Applicant with co-accused, the Court opined that in the absence of any cogent evidence which establishes that the transactions were for the purpose of dealing in the contrabands, mere monetary transactions do not establish the applicant’s complicity in the commission of the offence.

The Court also took note of the fact that no independent witnesses were joined by the prosecution to corroborate the recoveries and no photography or videography was done either.

"In the present case, the applicant was apprehended around 12:40 am in a public place on the basis of a secret information that was received at around 11:30pm on the same night. No explanation is provided for not doing any photography or videography and only a mechanical explanation is provided that although attempts were made by the raiding party to join independent witnesses prior to apprehending the applicant and before his search as well, however, the said persons left by citing their reasons. The same makes it clear that the non-joinder of independent witnesses was not on account of lack of individuals in the area at that hour. 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 of the lack of corroboration cannot be denied to the applicant", the Court held.

The Application was accordingly allowed.

Cause Title: Sahil Sharma Alias Maxx v. State Govt. of NCT of Delhi (2025:DHC10798)

Appearances:

Petitioner- Advocate Akshay Bhandari, Advocate Megha Saroa, Advocate Kushal Kumar, Advocate Anmol Sachdeva and Advocate Janak Raj Ambavat

Respondent- Additional Public Prosecutor Ritesh Kumar Bahri

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