Pranav B Prem

In a significant judgment, the Delhi High Court has observed that the fundamental rights of an accused enshrined under Article 21 of the Constitution of India take precedence over the restrictions on the grant of bail prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Justice Jasmeet Singh delivered this notable ruling while granting bail to Zakir Hussain, an accused in an NDPS case, emphasizing the need to balance constitutional safeguards with statutory restrictions.

Case Background

The case pertained to an FIR registered in July 2022, alleging the recovery of 2.615 kilograms of opium from Zakir Hussain’s possession. The co-accused, Firoz, was found with 0.510 grams of opium, while no contraband was recovered from the third accused, Munsad. Hussain had been in custody since July 18, 2022, and despite the chargesheet listing 22 witnesses, not a single witness had been examined over the past 2.5 years. Hussain’s counsel argued for bail, citing undue delay in trial, procedural lapses such as the non-joining of independent witnesses, and inconsistencies in compliance with statutory safeguards, including Sections 50 and 52A of the NDPS Act. The counsel also emphasized that the delay in trial infringed upon the accused’s right to a speedy trial under Article 21 of the Constitution.

Court’s Observations

Article 21 vs. Section 37 of NDPS Act

Justice Jasmeet Singh emphasized that the restrictions under Section 37 of the NDPS Act, which impose stringent conditions for bail, cannot override the fundamental rights guaranteed by Article 21. Section 37 stipulates that bail may only be granted if there are reasonable grounds to believe the accused is not guilty and unlikely to commit an offense if released. However, the Court ruled that prolonged incarceration without trial violates the accused’s right to personal liberty and a speedy trial, as guaranteed by Article 21. The judgment cited precedents, including Mohd. Muslim v. State (NCT of Delhi), where the Supreme Court observed that undue delay in trials can render stringent bail provisions inapplicable, thereby prioritizing individual liberty over statutory restrictions.

“I am of the view that the restrictions given under section 37 of NDPS Act cannot take precedence over the petitioner's rights guaranteed under Article 21 of Constitution of India,” Justice Jasmeet Singh said.

Delay in Trial

The Court noted that Hussain had been in custody for over two years and six months, and the trial was unlikely to conclude soon. Highlighting the importance of timely trials, the Court remarked that delays not only infringe on the accused’s rights but also contribute to the overcrowding of prisons, creating inhumane conditions for undertrial prisoners.

Non-Compliance with Procedural Safeguards

The Court found merit in the argument that no independent witnesses were present during the seizure process, despite the raid occurring in a public place. While non-joining of witnesses is not necessarily fatal to the prosecution’s case, the Court emphasized that it casts doubt when coupled with a lack of videographic evidence and procedural irregularities. Further, the Court noted that the officers failed to comply with Section 100(8) of the Code of Criminal Procedure (CrPC), which mandates the issuance of notices to individuals refusing to join as witnesses. The absence of any records regarding these passers-by further weakened the prosecution’s case.

Section 50 Compliance

The Court examined the compliance with Section 50 of the NDPS Act, which requires that the accused be informed of their right to be searched before a Magistrate or Gazetted Officer. While it found no major lapses in this regard, the Court reiterated the necessity of strict adherence to procedural safeguards to ensure fairness.

Delay in Sending Samples to FSL

The Court addressed the defense’s argument regarding a 13-day delay in sending the contraband samples to the Forensic Science Laboratory (FSL). Referring to Supreme Court judgments, the Court observed that such delays, though procedural irregularities, do not automatically vitiate the trial or entitle the accused to bail unless they result in serious prejudice.

Ruling and Conditions for Bail

Granting bail to Zakir Hussain, the Court held that his prolonged incarceration and the delay in trial justified the relaxation of Section 37’s conditions. The following conditions were imposed:

1. The accused must furnish a personal bond of ₹20,000 with one surety of the same amount.

2. The accused is prohibited from leaving the country without court permission and must surrender his passport.

3. The accused must keep his contact number active and inform the investigating officer of any change in address.

4. The accused must not contact prosecution witnesses or tamper with evidence.

5. The accused must attend all court hearings unless exempted.

Cause Title: ZAKIR HUSSAIN v. STATE GOVT. OF NCT OF DELHI

Case No: BAIL APPLN. 1418/2024

Date: January-22-2025

Bench: Justice Jasmeet Singh

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