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*	IN THE HIGH COURT OF DELHI AT NEW DELHI
%			            Date of Decision: December 12, 2025

+ 	BAIL APPLN. 1552/2025
	VIVEK KUMAR	.....Applicant
				Through:	Mr. Vatan Tripathi, Adv. 

				versus

	STATE OF NCT OF DELHI	.....Respondent
Through:	Mr. Aman Usman, APP for the State.
	SI Jagbir, Anti Narcotics Cell North.
	CORAM:
	HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral)


1. The present application is filed by the applicant seeking regular bail in FIR No. 192/2023 dated 25.03.2023, registered at Police Station Subzi Mandi, for offences under Sections 20/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).	
2. The FIR was registered pursuant to a secret information received on 24.03.2023 that two persons, namely, Sonu Kumar and the applicant are involved in drug trafficking activities and would be coming in an auto rikshaw of one Mehboob Ali to Subzi Mandi area to supply a huge consignment of Ganja between 09:30 PM to 10:30 PM. It is alleged that a raiding party was constituted and the accused persons were apprehended in an auto rikshaw being driven by co-accused Mehboob Ali. On search, 20 kg of Ganja was recovered from the foot rest of passenger seat of the Auto Rickshaw. During the course of interrogation, the disclosure statements made by the accused persons allegedly led to a further recovery of 290 kg of Ganja (that is, 125 kg and 165 kg of Ganja respectively from two different locations). 
3. The learned counsel for the applicant submits that applicant has been falsely implicated in the present case and he is innocent. 
4. He submits that despite the fact that the recovery was made from an auto rikshaw in a public place, no public witness joined the search and seizure. He further submits that there is also no CCTV, video footage or photography to show that the recovery was in fact made from the applicant either.  He submits that even if the case of the prosecution is taken at the highest, the applicant was merely a passenger in the auto rickshaw.
5. He submits that the applicant has been in custody since 25.03.2023 and charges are yet to be framed in the present case. 
6. Per contra, the learned Additional Public Prosecutor for the State submits that large quantity of contraband has been recovered and thus the bar of Section 37 of the NDPS Act would apply. He stresses that recoveries were also made on the disclosure of the applicant and there is CDR connectivity between the applicant and other accused persons. He further submits that the bail application of co-accused Mehboob Ali has already been dismissed by this Court.
7. I have heard the counsel and perused the record.
8. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.
9. It is unequivocally established that, to be granted bail, the accused charged with offence under the NDPS Act must fulfill the conditions stipulated in Section 37 of the NDPS Act.
10. It is the case of the prosecution that the applicant was travelling in an Auto Rikshaw from which a recovery of 20 kg of Ganja was made. Allegedly, the disclosure of the applicant and other accused persons also led to a further recovery of 290 kg of Ganja.
11. Pertinently, even though the recovery from the auto rikshaw was effected in a busy public place on the basis of secret information, no public witnesses were joined by the prosecution and no photography or videography was conducted to corroborate the recovery either. Similarly, despite sufficient opportunity, no public persons were associated by the prosecution during the recoveries which were allegedly effected on the basis of disclosure either.
12. Undoubtedly, the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses or absence of photography and videography of the recovery. The same would not be fatal to the prosecution’s case. Reliance on the testimonies of official witnesses is sufficient to secure conviction once it is established that the police witnesses have no animosity against the accused person so as to falsely implicate him. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials. 
13. However, 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.
14. 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. 
15. In the present case, a mechanical explanation is provided that although some persons were asked to join the investigation at the time of the initial raid, however, they left after citing their reasons. Peculiarly, an identical explanation is given for the recoveries allegedly effected on basis of disclosures that the neighbours in the vicinity did not open their doors. 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 by the Trial Court, at this stage, the benefit cannot be denied to the applicant.
16. It is argued on behalf of the prosecution that the applicant has CDR connectivity with the co-accused persons, however, prima facie, in the absence of any supporting material, the same alone is insufficient to link the applicant to the contraband or recovery. 
17. The prosecution has also laid much emphasis on the rigours of Section 37 of the NDPS Act being attracted owing to the huge recovery effected in the present case. It is imperative to note that the applicant has been in custody since 25.03.2023 and the charges are yet to be framed in the present case despite a lapse of more than two and a half years since the applicant’s arrest. It is well-settled that grant of bail on account of delay in trial and long period of incarceration cannot be said to be fettered by the embargo under Section 37 of the NDPS Act. The Hon’ble Apex Court, in the case of Mohd. Muslim v. State (NCT of Delhi) : 2023 SCC OnLine SC 352 has observed as under:
 “21….Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant 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 prisoner becomes hostile by ordinary standards. Self-perception changes.”
24. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer's ‘The Prison Community’ published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata : immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”
(emphasis supplied)
18. The Hon’ble Apex Court in the case of Man Mandal & Anr. v. The State of West Bengal : SLP(CRL.) No. 8656/2023 had granted bail to the petitioner therein, in an FIR for offences under the NDPS Act, on the ground that the accused had been incarcerated for a period of almost two years and the trial was likely going to take a considerable amount of time.
19. The Hon’ble Apex Court in Rabi Prakash v. State of Odisha : 2023 SCC OnLine SC 1109, while granting bail to the petitioner therein held as under :
“4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”
(emphasis supplied)

20. Various courts have recognized that prolonged incarceration undermines the right to life, and liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedence over the statutory restrictions under Section 37 of the NDPS Act. 
21. It cannot be denied that the applicant has already spent substantial period in custody and the trial is unlikely to conclude in the near future. The object of jail is to secure the appearance of the accused during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment. 
22. Insofar as the dismissal of the bail applications filed by the applicant Mehboob is concerned, the record indicates that the first application filed by the co-accused Mehboob Ali was dismissed as withdrawn on 03.10.2024. Subsequent bail applications filed by co-accused Mahboob Ali were dismissed by order dated 08.04.2025 and 14.11.2025 after noting that there has been no change in circumstance. In the opinion of this Court, the same cannot be the sole ground for not entertaining the application filed by the applicant. 
23. The applicant is also stated to have clean antecedents, and is thus not likely to commit any offence while on bail.
24. In view of the aforesaid discussion, the present application is allowed and the applicant is directed to be released on bail (if not in custody in any other case) on furnishing a personal bond for a sum of ?25,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the following conditions:
a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;
b. The applicant shall under no circumstance leave the boundaries of the country without the permission of the learned Trial Court;
c. The applicant shall appear before the learned Trial Court as and when directed;
d. The applicant shall provide the address where he would be residing after his release and shall not change the address without informing the concerned IO/ SHO;
e. The applicant shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times.
25. In the event of there being any FIR/DD entry / complaint lodged against the applicant, it would be open to the respondent to seek redressal by filing an application seeking cancellation of bail.
26. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
27. The bail application is allowed in the aforementioned terms.


AMIT MAHAJAN, J
DECEMBER 12, 2025
“SK”










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