Bar On Grant Of Bail Under Section 37 Of NDPS Act Can't Be Invoked Where Evidence Against Accused Is Unbelievable: Delhi High Court

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

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The Delhi High Court has said that the bar provided under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, cannot be invoked in a case where evidence against the accused “appears to be unbelievable” and “does not seem to be sufficient for the purpose of conviction.”

“The Courts are not expected to accept every allegation made by the prosecution as a gospel truth,” Justice Amit Mahajan said while granting bail to a man in an NDPS case.

Section 37 states that bail should not be granted to an accused unless the accused is able to satisfy twin conditions i.e. reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence, if granted bail.

The accused, Vinod Nagar, was arrested in November 2021 and has been in custody since then. This was after a co-accused revealed his name in his statement.

The prosecution alleged that Nagar's involvement in illegal trafficking of drugs which was corroborated by the CAF and CDR of the co-accused and the WhatsApp chats between them.

It was Nagar's case that a disclosure statement of the co-accused is per se not substantial without being corroborated by recovery, and thus, the prosecution was not able to establish any allegation against him.

He further submitted that Section 37 of the NDPS Act was not attracted qua him and that his bail application ought to be considered without applying the rigors mentioned therein.

On the other hand, the NCB contended that the seized contraband involved commercial quantity of Cocaine and the embargo under Section 37 of the NDPS Act would squarely apply in the case.

It was also submitted that there were no reasonable grounds for believing that Nagar was prima facie not guilty of the alleged offence.

Granting bail, Justice Bansal said that no recovery was effectuated from Nagar and that merely because he was in regular touch with the co-accused, is not sufficient to prima facie establish the offence against him.

“The applicant, therefore, was arrested and made accused in the present case on the basis of the disclosure statement of the co-accused, which as discussed above, is not admissible without any corroborative evidence, and on the basis of the alleged WhatsApp chats, which, admittedly, were exchanged about ten months prior to the recovery of the contraband from the co- accused,” the court said.

Furthermore, the court observed that the recovery of the contraband was made in June 2021 whereas the application under Section 52A of the NDPS Act was filed belatedly in September 2021.

“There is no explanation as to why the application was filed belatedly, however, the same, at this stage, appears to be in violation of Section 52A of the NDPS Act, thereby vitiating the procedure for collection of sample,” the court said.

Case Title: Vinod Nagar v. Narcotics Control Bureau (2024 Del HC)