Procedural irregularities do not invalidate evidence under NDPS Act; bail applications must satisfy stringent criteria outlined in Section 37.

RAVINDER DUDEJA, J.

1. This is an application filed on behalf of petitioner/accused Ravi Prakash @ Vicky under Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 [“BNSS”] read with Section 36A (3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["NDPS Act"] for the grant of regular bail in FIR No. 0104/2023, registered under Sections

21/29 of the NDPS Act at PS Special Cell.

2. Notice of the application was served to the respondent. State through learned Additional PP, filed the status report and has contested the petition.

Signature Not Verified Digitally Signed

3. Learned counsel for the petitioner has submitted that the alleged recovery was effected at a place which was 20-30 meters behind the temple and in front of parking towards Shakur Basti Railway Station at 7.40 pm. It is a busy area but no independent public witness was joined at the time of alleged recovery as per Section 100 (4) & 100 (8)

of the Code of Criminal Procedure .

4. It has been further submitted that information was received at 5.45 pm and the raiding team reached at the spot at 6.50 pm, thus, there was enough time available to arrange videography/photography, but neither any videography nor any photography of the investigation at the place of incident was conducted. No effort has been made to procure the CCTV footage.

5. It is further submitted that if the prosecution case is to be believed, petitioner named several customers but no action has been taken against the said customers nor any investigation has been conducted to establish the chain.

6. It is also submitted that there is no evidence of any CDR connectivity between the petitioner and co-accused Tasleema. No location chart of the petitioner has been annexed with the charge sheet, and thus, there is no corroborative evidence to support the alleged recovery.

7. It is also argued that there was a delay in compliance of Section 52-A NDPS Act since the application was filed almost a month after the recovery. It has been submitted that such a procedural lapse breaches the mandatory provisions, and thus, petitioner has crossed Signature Not Verified Digitally Signed the bar under Section 37 NDPS Act, making him eligible for bail.

8. It is further submitted that petitioner has been in custody since 19.04.2023. Trial is not likely to conclude in near future. Petitioner has clean antecedents and he shall abide by all the terms and conditions that may be imposed.

9. Bail application has been opposed by the learned APP, arguing that there is recovery of commercial quantity of heroin from the possession of the present petitioner, and therefore, bar of Section 37 NDPS Act is applicable in the present case. Relying upon the judgment of the Supreme Court in the case of NCB Vs. Kashif , 2024 SCC OnLine 3848, it has been submitted that any lapse or delay in compliance of Section 52-A is a procedural irregularity, and therefore, accused is not entitled for the grant of bail on this ground alone.

10. With regard to the CCTV footage, learned APP states that there is no CCTV camera installed near the place of occurrence, and that is why, there is no CCTV footage available. Relying upon the FIR, he submits that few passers-by were requested to join the investigation, but they had refused and left, expressing their inability.

11. Learned APP further submits that videography/photography at the time of recovery was not a mandatory legal requirement under the Code of Criminal Procedure . Moreover, such facilities were not available to the Investigating Officer. The only way in which the Investigating Officer could have made the videography was through his own mobile phone, and doing so, would have meant that he had to deposit his mobile phone as a primary evidence, which is practically Signature Not Verified Digitally Signed not possible for the Investigating Officers to do.

12. The Court has considered the submissions made by the learne