Prolonged incarceration and lack of independent witnesses can justify bail in drug-related cases, emphasizing the need for proper procedure in evidence collection.

JUDGMENT

ANISH DAYAL, J.

1. This is the third application preferred by the applicant under Section 439, Code of Criminal Procedure, 1973 [“CrPC”] seeking regular bail in case arising out of FIR no. 994/2020 dated 15th December 2020 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 1985 [“NDPS Act”] registered at Police Station [“PS”] Uttam Nagar. On 31st March 2021, chargesheet was filed under Section 20/25/29 of the NDPS Act. The applicant is in judicial custody since 15th December 2020.

Factual Background

2. As per the case of prosecution, on 15th December 2020, on a secret information, applicant was apprehended by the Anti-Narcotics Team, Dwarka District from Jhanda Chowk, Near Power House, Kali Basti, Uttam Nagar, Delhi where he had arrived riding his motorcycle. Upon apprehension, a black/purple bag was recovered from the applicant’s possession containing 5.09 kg ganja packed in a plastic packet.

3. Properties were seized and sealed vide seizure memos pursuant to which, aforesaid FIR was lodged and further investigation was carried out. During the course of investigation, applicant was interrogated and arrested on 15th December 2020 and produced before the Metropolitan Magistrate at Tihar Jail Court Complex. On the same day i.e. 15th December 2020, search was carried out at the residence of the applicant at Agwanpur, Faridabad which led to the recovery of 125 kg ganja packed in 8 white synthetic sacks along with cash in the amount of Rs. 28,40,000/- [Rupees Twenty-Eight Lakhs Forty Thousand only].

4. Upon interrogation, applicant disclosed that one Chandan is the main supplier who sends ganja in parcels by train from Howrah, West Bengal through one Murari; said parcels are received by one Lalit Choudhary at New Delhi Railway Station who then hands over these parcels to the applicant who supplies the same to various localities within Delhi-NCR. Pursuant to this information, co-accused Lalit Choudhary was also tracked down and arrested on 17th December 2020. With continued efforts, co-accused Murari and Chandan were also apprehended from Howrah Railway Station and interrogated; co-accused Murari Kumar Jha was arrested on 20th December 2020, produced before the CJM, Howrah, West Bengal and sent to judicial custody. Main supplier Chandan was also arrested and produced before the Court, pursuant to which he was sent to judicial custody.

5. In the course of investigation, proceedings under Section 52A NDPS Act were carried out before the Duty MM, Dwarka Courts, Dwarka and samples were sent to Forensic Science Laboratory, Rohini [“FSL”] which examined the samples and rendered the opinion that, “on physical, microscopic, chemical & TLC examination, exhibits were found to be ‘GANJA’ (Cannabis)”. Call detail records [“CDR”] of all accused persons, including the applicant, were obtained and analysed, as per which, all accused persons were stated to have been in touch through phone calls.

6. Final report qua all the accused has been filed by the State and the case is pending trial before the court of Additional Sessions Judge (Special Judge NDPS Act), Dwarka Courts, Dwarka, New Delhi. As of 27th April 2022, charges have been framed against all the accused, including the applicant.

7. Applicant had previously moved this Court for a similar relief – BAIL APPLN. 1375/2022 was dismissed as withdrawn vide order dated 19th July 2023 and BAIL APPLN. 3704/2023 was dismissed for want of prosecution vide order dated 09th May 2024.

Submissions on behalf of Applicant

Entire seizure is not “ganja”

8. Counsel for applicant, at the outset, submits that only flowering or fruiting tops of the cannabis plant are to be considered ganja and not the seeds, stems, and leaves in respect of the heterogenous material seized herein. Furthermore, he averred that as per the description of the search and seizure team, a pungent-smelling, moisture-laden, leaf and grasslike substance was found.

9. Referring to the definition of “ganja” in Section 2(iii)