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TMI Blog2024 (7) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... oloured tote bag who appeared suspicious. 3. It is alleged that the woman was questioned by the police officials after she tried to leave the bags. It is alleged that upon inspecting the bags, eight packets wrapped in brown tape were found inside the bags. It is alleged that the packets contained green leaves and seeds, which appeared to be hemp by sight and smell. 4. It is alleged that the woman was identified as the applicant. It is alleged that the applicant was moved to the parking lot shed where a search was conducted. It is alleged that no additional intoxicants were found on the applicant during the search. 5. It is alleged that the applicant admitted to bringing the contraband (Ganja) from Patna, Bihar to New Delhi by train and was waiting to deliver the same at Ghoda Wala Mandir, Raghubir Nagar. 6. It is alleged that the four different sized packets recovered from the sky-blue coloured trolley bag were equally mixed by ASI. It is alleged that the green coloured seeds and husks recovered from the bag were mixed and kept in two large white coloured polythene bags, each weighing 10 kg separately. It is alleged that the green-coloured husk and seed-like substances from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness at the time of the alleged recovery as mentioned in the FIR, which evidently proves that the applicant has been falsely implicated by the police. He further submits that no endeavor was made by the prosecution to photograph or videotape the recovery either. 15. He relied on the judgment in the case of Amani Fidel Chris v. NCB : Crl.A. 1027/2015, where it was held that mixing of substances from different parcels without observing the proper protocol invalidates the evidence. He also relied on the case of Gopal Das v. NCB : Bail Appln. 3491/2020 wherein the Court had granted bail to the accused therein in similar circumstances and observed that mixing substances compromises the recovery. 16. He submitted that the samples of the contraband were drawn after the mixing of the substances from the eight packets that were allegedly recovered from the applicant. He submitted that the same is in teeth with the judgment by this Court in the case of Basant Rai v. State : Crl. Appeal No. 909/2005 and the Standing Order 1/88 dated 15.03.1988. 17. He submitted that all the witnesses cited in the chargesheet are police officials, and therefore, there are no chances of the applicant tamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting of bail." 26. The accusation in the present case is with regard to the recovery of commercial quantity of contraband. Once the rigours of Section 37 of the NDPS Act are attracted, as provided under the Section, the Court can grant bail only when the twin conditions stipulated in Section 37(1)(b) of the NDPS Act are satisfied in addition to the usual requirements for the grant of bail - (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; and (2) That the person is not likely to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 34. 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. 35. The present case is based allegedly on a chance recovery and it is possible that the Investigating Agency did not get sufficient time to prepare. However, given the crowded nature of the place from where the recovery was made, it is peculiar that no public witness has joined the search. 36. A bald statement has been made, as stated in the chargesheet filed, that 4-5 passers-by were asked, however, they refused to join the investigation and left the spot citing legitimate compulsion related to journey. The recovery in the present case was effectuated at Exit Gate No.1 in front of Coolie Hall, Pahar Ganj Side, New Delhi Railway Station. It is unclear as to why the police officers only requested passers-by to join the investigation instead of the government employees or sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant deserves to be enlarged on bail. 22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 23. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State21 as "a radical transformation" whereby the prisoner: "loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Shukla v. State of U.P. : 2023 SCC OnLine SC 918, the Hon'ble Apex Court released the petitioner therein on bail, and observed as under: "3. It appears that some of the occupants of the Honda City‟ Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed." 47. A Coordinate Bench of this Court in Gurpreet Singh v State of NCT of Delhi : 2024:DHC:796, considered the effect of delay and observed as under: "16. In addition to the above, only 2 (two) out of 22 witnesses have been examined by the prosecution, and that too partially, though more than three and a half years have passed since the arrest of the applicant. It may be true that the reason for the delay in the conclusion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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