The strict conditions under the NDPS Act for bail must be met, including evidence of non-guilt and absence of risk of re-offence, which the applicant failed to demonstrate.

JUDGMENT :

SAURABH BANERJEE, J.

1. By virtue of the present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, Hereinafter ‘ BNSS read with Section 439 of the Code of Criminal Procedure, 1973, Hereinafter ‘Cr.P.C., the applicant seeks grant of regular bail in proceedings arising from FIR No.637/2020 dated 28.10.2020 registered under Sections 21 /29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Hereinafter ‘NDPS Act at PS: Bhalswa Dairy, Delhi.

2. As per FIR, on 27.10.2020 at about 07:45 PM, secret information was received at the Narcotic Cell, Outer North District, Delhi that one person namely Wasim was going to supply heroin to one Mohd. Jabir/ applicant herein near Bhalswa Chowk between 09:30 PM to 11:30 PM. The same, at the instance of the ACP, Operations Cell, Outer North District was reduced to writing vide DD No.7 at 08:15 PM. During a raid conducted by the raiding team at Bhalswa Chowk, at around 09:45 PM, both Wasim and the applicant were identified by the secret informant, and Wasim was seen taking out a packet from his black bag and handing over the same to the applicant, at which point of time, both the said persons were apprehended. Notice(s) under Section 50 NDPS Act were first served upon them, and they were then apprised of their rights to be searched in the presence of a Gazetted Officer or Magistrate, which they declined. Thereafter, the ACP was called to the spot, and upon search in his presence, two transparent polythene bags containing a light brown coloured powder, 500g heroin each, were recovered from each of them. Thus, both Wasim and the applicant were arrested, and FIR No.637/2020 dated 28.10.2020 was registered under Sections 21 /29 NDPS Act.

3. Subsequent thereto, the charge-sheet has been filed and vide order dated 23.05.2022 charges have also been framed against Wasim and the applicant under Sections 21 /29 NDPS Act by the learned Special Judge (NDPS), North District, Rohini Courts, Delhi, Hereinafter ‘learned Trial Court

4. Though the applicant was granted bail vide judgement dated 28.03.2023 passed by this Court, however, the same was set aside by the Hon’ble Supreme Court vide order dated 02.12.2024 in Criminal Appeal No.4931/2024 filed by the State, and the bail granted stood cancelled, however, granting liberty to reapply for grant of bail in case of either a change in circumstances or prolongation of the trial due to reasons not attributable to the applicant.

5. Hence, the subsequent/ present application of the applicant seeking regular bail.

6. It is the prime contention of learned counsel for the applicant that though the judgement dated 28.03.2023 passed by this Court has been set aside by the Hon’ble Supreme Court, however, other judgements relying upon the said order dated 28.03.2023 have not been set aside. The learned counsel relies upon a judgment of a Co-ordinate Bench of this Court in Aabid Khan vs. State Govt. of NCT of Delhi , 2023:DHC:8675. The learned counsel also submitted that learned Trial Court has also been following the said judgement dated 28.03.2023.

7. Placing reliance upon a decision of the Hon’ble Supreme Court dated 13.07.2023 in SLP Crl. No.4169/2023 entitled ‘ Rabi Prakash vs. State of Odisha ’, the learned counsel submitted that since the applicant has already undergone a total period of four and a half years in custody, and the trial is not likely to conclude soon, the applicant deserves to be released on regular bail.

8. The learned counsel lastly submitted that since the surrender of the applicant pursuant to order dated 02.12.2024 passed by the Hon’ble Supreme Court cancelling the bail granted to the applicant, there has been prolongation of trial without