The Delhi High Court has held that the stringent restrictions on bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act may warrant a nuanced application where the alleged recovery of contraband is only marginally above the statutory threshold for commercial quantity.
Justice Arun Monga made the observation while granting regular bail to Vinay Sharma, who had been in custody for nearly three years in a case involving the alleged recovery of 21.508 kg of ganja, marginally exceeding the prescribed commercial quantity of 20 kg.
The Court took into account the limited progress of the trial, the absence of previous criminal antecedents and the circumstances surrounding the alleged recovery while allowing the bail application.
The case arose from an FIR registered in August 2022 at Inder Puri police station in Delhi under Section 20 of the NDPS Act. According to the prosecution, Sharma was apprehended following a tip-off that he would arrive near Todapur Village Road to supply ganja. The police allegedly recovered two packets containing the contraband from a bag he was carrying.
Appearing for Sharma, his counsel argued that the alleged recovery had not been documented through photographs or videography, despite the availability of technological means. It was also contended that no independent witness had corroborated the seizure, raising questions about the manner in which the recovery was effected.
The defence further pointed out that Sharma had remained in judicial custody since August 10, 2022, while only three of the 18 prosecution witnesses had been examined. It was argued that the delay was not attributable to the accused and that his continued incarceration was unjustified, particularly in view of his clean antecedents and previous compliance with interim bail conditions.
Opposing the plea, the prosecution maintained that the recovery of a commercial quantity attracted the stringent conditions prescribed under Section 37 of the NDPS Act. It contended that the statutory requirements governing search and seizure had been complied with and that Sharma was not entitled to bail.
The High Court, however, observed that the alleged recovery exceeded the commercial quantity threshold by only 1.508 kg. It held that, in such circumstances, a rigid application of Section 37’s restrictions might not be justified and called for a more nuanced assessment.
The Court also emphasised that Sharma had undergone nearly three years of incarceration, while the trial had progressed slowly. These circumstances, coupled with the absence of previous criminal antecedents, weighed in favour of granting bail.
On the apprehension that Sharma might tamper with evidence, the Court noted that the seized contraband and other material evidence were already in the prosecution’s custody. It further observed that most prosecution witnesses were police or other official personnel, and no material had been placed before it to indicate that Sharma had attempted to influence them.
Accordingly, the High Court allowed the bail application and directed Sharma’s release on furnishing a bail bond and surety to the satisfaction of the trial court, subject to the usual conditions. It clarified that its observations were confined to the adjudication of the bail plea and would not affect the merits of the pending trial. The prosecution was also granted liberty to seek cancellation of bail if Sharma became involved in another offence while on bail.
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