Article 21 Of Constitution Will Prevail Over Restrictions U/S 37 NDPS Act: Delhi HC Grants Bail To Accused
The Delhi High Court granted bail to an accused in relation to an FIR registered under Sections 18, 21, 25, and 29 of the NDPS Act.
The Delhi High Court granted bail to an accused holding that Article 21 of the Indian Constitution will prevail over the restrictions given under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court was dealing with a Bail Application filed by an accused in relation to an FIR registered under Sections 18, 21, 25, and 29 of the NDPS Act.
A Single Bench of Justice Jasmeet Singh observed, “In the present case, the petitioner has been in custody since 18.07.2022 i.e. more than 2 years 6 months. As per the chargesheet, there are total 22 witnesses cited and as of now, not a single witness has been examined. I am of the view that the restrictions given under section 37 of NDPS Act cannot take precedence over the petitioner’s rights guaranteed under Article 21 of Constitution of India. Hence, Article 21 of Constitution will prevail over the restrictions given under section 37 of NDPS Act as the petitioner has undergone more than 2 years 6 months of custody and the trial is not likely to conclude in near future.”
Advocate Aditya Aggarwal represented the Petitioner/Accused while APP Aman Usman represented the Respondent/State.
Factual Background
A secret information was received in 2022 that one person along with others would come in a car to supply opium/heroine at Dhuala Kuan, Delhi Cant. Area. The said information was reduced into writing after informing ACP who gave direction to raid and take appropriate action. One raiding team was constituted and the same left for the spot. The team saw a car in which 3 individuals were sitting and the said car stopped to which the secret informer identified the suspected person sitting adjacent to the driver and his accomplice person i.e., the Petitioner-accused, sitting on the back seat. The three individuals allegedly came to supply opium/heroin.
After sometime, the two accused including the Petitioner came out of the car carrying bags in their hands and started waiting for someone to whom the alleged contraband was to be delivered. After waiting for 10 minutes when nobody came to collect the bags, the raiding team apprehended the accused persons with their bags. From search of the co-accused, 0.510grams of opium was recovered and from the Petitioner, 2.615 Kgs of opium was found from the bag which he was carrying and from driver, nothing was recovered. Hence, the FIR was registered and the accused was arrested. Resultantly, he sough bail before the High Court.
Reasoning
The High Court after hearing the arguments from both sides, noted, “… non joining of independent witnesses is not fatal to the case of the prosecution but while considering the bail application, the benefit must be extended to the petitioner.”
The Court emphasised that, to grant bail in NDPS case, the accused person has to cross the hurdle of twin conditions mentioned in Section 37 of NDPS Act. It added that, time and again, the Supreme Court in catena of Judgments has laid down that the twin conditions can be relaxed provided the accused person has undergone substantial period of incarceration and the trial is unlikely to end in near future.
“… the accused person has a right to speedy trial which flows from Article 21 of Constitution of India. … As per the status report, the petitioner is accused in FIR No. 42/2007 under section 8, 15, 29 of NDPS Act, PS Manasa, Dist. Neemuch, MP wherein the petitioner has been acquitted by the learned Trial Court vide judgment dated 15.11.2019. The other two FIRs (FIR No. 23/06 under section 330, 342, 294, 506B, 323, 34 of IPC and section 3(1)2a of SC/ST Act and FIR No. 24/12 under section 354/509 of IPC) are not under sections of NDPS Act”, it further said.
The Court concluded that the Petitioner has made out a case for grant of bail on the ground of non-joinder of independent witnesses and most importantly delay in trial and long incarceration.
Accordingly, the High Court granted bail to the accused on furnishing a personal bond of Rs. 20,000/- each with one surety in the like amount, to the satisfaction of the concerned Trial Court.
Cause Title- Zakir Hussain v. State Govt. of NCT of Delhi (Neutral Citation: 2025:DHC:330)
Appearance:
Petitioner: Advocates Aditya Aggarwal and Ruchika.
Respondent: APP Aman Usman
