While stringent bail conditions exist for narcotic offences, they cannot override the constitutional right to liberty. Prolonged pre-trial detention, coupled with a lack of procedural safeguards such as independent witness corroboration or electronic recording of searches, justifies granting relief in the interest of justice.

JUDGMENT :

PRATEEK JALAN, J.

1. By way of the present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”], the applicant seeks regular bail in connection with FIR No. 194/2023 dated 17.02.2023, registered at Police Station Narela, Outer North District, Delhi, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“the NDPS Act”].

2. I have heard Mr. Ankit Sharma, learned counsel for the applicant, and Mr. Tarang Srivastava, learned Additional Public Prosecutor for the State. The prosecution has filed a status report, which is on record.

A. PROSECUTION CASE

3. The prosecution case, as emerging from the status report, is that, on 16.02.2023, secret information was received to the effect that one Faijan @ Sharukh was involved in the supply of ganja and would deliver a consignment thereof to his associate, i.e. the applicant herein. Pursuant thereto, a raid was conducted near Police Colony, Sector A-5, Narela, and at about 07:40 PM, the applicant and co-accused Faijan were apprehended while carrying a heavy white plastic katta and a backpack. Notices under Section 50 of the NDPS Act were served upon them, and a search was thereafter conducted.

4. Upon search of the applicant, a heavy white plastic katta was recovered from his possession, containing four packets wrapped in khakhi tape and one transparent polythene packet. Upon opening the said packets, a grassy substance was found which, based on its colour, smell, and physical properties, appeared to be ganja. The four packets weighed 5.270 kilograms, 5.184 kilograms, 5.560 kilograms, and 5.550 kilograms respectively, while the fifth packet weighed 1 kilogram [including the weight of the polythene]. The recovered ganja was thereafter sealed and marked as “X”. Search of co-accused Faijan resulted in the recovery of one packet of ganja weighing 5.098 kilograms, which was sealed and marked as “Y”. The accused persons were arrested on 17.02.2023.

5. Upon completion of the investigation, a chargesheet was filed under Sections 20/29 of the NDPS Act.

B. SUBMISSIONS BY LEARNED COUNSEL FOR THE PARTIES

6. In support of the present application, Mr. Sharma submitted that, although the alleged recovery from the applicant comprises a commercial quantity of ganja, i.e. 22.564 kilograms, the seizure was neither effected in the presence of any independent witness, nor documented by way of photography or videography. He places reliance upon the judgment of a coordinate Bench of this Court in Bantu v. State Govt. of NCT of Delhi , 2024 SCC OnLine Del 4671 [hereinafter, “Bantu”] to contend that, in such circumstances, the benefit of doubt, at the stage of consideration of bail, ought to enure to the accused.

7. Mr. Sharma further submitted that the applicant is a person with disability, and has been in custody for over 3 years and 2 months. Co-accused Faijan has been enlarged on bail by the Special Court vide order dated 02.06.2023, (The Special Court noted that the alleged recovery from Faijan was 5.098 kilograms of ganja, which falls within the intermediate category, and therefore, the rigours of Section 37 of the NDPS Act were not applicable to him.). He submitted that, although prosecution evidence has commenced, only 9 out of 17 witnesses have been examined thus far, and the trial is likely to take considerable time to conclude.

8. Mr. Srivastava, on the other hand, submitted that the total recovery effected in the present case is 27