The absence of independent witnesses and lack of videography during recovery can create doubt on the prosecution's case, justifying bail despite statutory restrictions.

JUDGMENT :

VIKAS MAHAJAN, J.

1. The present petition has been filed under Section 439 CrPC (now Section 483 BNSS) seeking regular bail in connection with FIR No. 243/2022 under Sections 21/25 of NDPS Act registered at Police Station Mehrauli.

2. The case of the prosecution is that on 06.04.2022, a secret information was received by SI Rajeev Kumar at Narcotics Squad, South District, New Delhi that a Nigerian national who resides somewhere in the area of Chattarpur or Maidangarhi and is into supply of drugs in Delhi/NCR is coming near Buddha Temple Ahinsa Sthal behind Samshan Ghat Street, Mehrauli, Delhi to supply narcotic substance/smack/heroine to someone.

3. Accordingly, a raiding team was constituted which went to the informed place. At about 01:25 p.m. a scooty (registration no. DL 7S AL 4056) which was being ridden by Nigerian person wearing black jeans, Green and Black Army T-shirt and sky-blue jacket came towards M.B. Road and was waiting for someone. At the instance of secret informer, he was detained and on searching his body, Heroin weighing 272 gms was recovered from his denim jacket worn by him. Accordingly, he was arrested.

4. Mr. Nitin Saluja, the learned counsel for the petitioner submits that the petitioner is in custody since 06.04.2022 and he has been incarcerated for a period little less than 03 years. He submits that the prosecution has cited as many as 17 witnesses of which only 05 witnesses have been examined, Thus, the conclusion of trial is likely to take some time.

5. He further contends that the petitioner has no criminal record, therefore, the rigours of Section 37 of NDPS are not attracted.

6. He further submits that during the seizure proceedings neither any independent public witnesses were joined nor any photography or videography was conducted. In support of his contention, he placed reliance on the decision of a coordinate bench of this Court in Bantu vs. State Govt of NCT of Delhi, 2024 SCC OnLine Del 4671.

7. He further contends that there is no CDR or CCTV footage relied upon by the prosecution to substantiate the claim that the petitioner was present at the place of incident.

8. Per contra, the learned APP has argued on the lines of the status report.

9. He submits that the recovery from the petitioner is of commercial quantity. Therefore, the rigors of Section 37 of NDPS are applicable. He submits that at the time of commission of offence, the Code of Criminal Procedure was applicable and the same does not provide for photography or videography to be done during the search and recovery.

10. He further contends that the law is well settled that conviction can be based even on the testimonies of the official witnesses. He, therefore, urges the Court that the petitioner’s bail application be rejected.

11. I have heard the learned counsel for the petitioner, as well as, learned APP for the State and have perused the record.

12. It may be noted that recovery was made in the case at about 1:25 pm in the month of April during broad day light but no independent witnesses was joined. The justification given in the charge-sheet as well as in the status report is that efforts were made to join the independent witnesses but no one was ready for the same but insofar as absence of videography and photography is concerned, no justification for the same is forthcoming. A coordinate bench of this Court in Bantu (supra) has observed that though, sufficiency of explanation as regards lack of videography and photography is to be tested during the course of trial, however, in the absence of any independent witnesses in support of recovery, lack of videography and photography is a relevant factor while considering applications for grant of bail as the same cast a doubt over the very fulcrum of the case. The relevant paragraphs from the said decision are as under:

“72. Almost all individuals carry a mobile phone compatible for videography these days. From the above cases, it is clear that it is open for the prosecution to fur