Pranav B Prem

In a recent decision, the Delhi High Court has ruled that the bar on granting bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), does not apply in cases where no contraband is recovered from the accused, and the materials against them is limited to contact with co-accused persons. Justice Amit Mahajan held that mere contact with co-accused individuals found in possession of contraband cannot, in itself, constitute substantive material of guilt. The Court remarked, “The Courts are not expected to accept every allegation made by the prosecution as a gospel truth. Mere contact with other co-accused persons who were found in possession of contraband cannot be treated to be corroborative material in the absence of substantive material found against the accused.”

Case Background

The bail application was filed by Abdul Rab, an Afghan national, who was arrested in connection with an FIR registered by the Narcotics Control Bureau (NCB) in 2022. The FIR alleged violations under Sections 8(c), 21(c), 22(c), 23, 25, 27A, and 29 of the NDPS Act. The case stemmed from a major recovery of contraband, including 50 kg of heroin, 47.06 kg of suspected narcotic substances, and ₹30 lakh in cash from the residence of co-accused Razi Haider Zaidi in New Delhi. Abdul Rab was implicated based on the disclosure statements of co-accused persons and call detail records (CDR) showing his alleged communication with them. The prosecution claimed that Abdul Rab had delivered chemical containers to a godown in Muzaffarnagar where heroin was purportedly manufactured. However, no contraband or cash was recovered from Abdul Rab himself.

Prosecution’s Submissions

The prosecution, represented by Senior Standing Counsel Arun Khatri, argued that Abdul Rab had conspired with co-accused individuals and played an active role in the crime. The CDR analysis, they contended, established his involvement as his phone location coincided with that of co-accused Razi Haider and others on key dates. The NCB also pointed out that Abdul Rab had imported two chemical containers, one of which was allegedly used for manufacturing narcotics. They argued that the total recovery in the case was of commercial quantity, and hence the stringent conditions of Section 37 of the NDPS Act were applicable.

Applicant’s Defense

Counsel for Abdul Rab, Sushma Sharma, contended that her client had been falsely implicated. She emphasized that:

1. No contraband was recovered from Abdul Rab.

2. The evidence against him was limited to uncorroborated disclosure statements of co-accused persons and CDR records, which do not prove guilt.

3. He was being prosecuted for the same act of delivering chemical containers in two separate cases, amounting to double jeopardy.

4. Abdul Rab had been in custody since May 19, 2022, and charges were yet to be framed, prolonging his incarceration without substantive evidence.

Court’s Observations

Justice Amit Mahajan carefully examined the evidence and legal principles governing bail under the NDPS Act. The Court highlighted the following key points:

1. Lack of Substantive Evidence: The Court noted that the prosecution’s case relied heavily on the disclosure statements of co-accused persons and Abdul Rab, as well as CDR connectivity. It emphasized that such disclosure statements, without corroboration, are not admissible as evidence, citing the Supreme Court’s ruling in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]. “At this stage, the only evidence brought on record by the prosecution is the disclosure statement of the co-accused persons as well as the applicant, and the CDR connectivity between the applicant and the co-accused persons,” the Court observed.

2. Section 37 Not Attracted: The Court clarified that the stringent conditions under Section 37 of the NDPS Act, which bar bail unless the accused is prima facie found not guilty and unlikely to commit further offenses, do not apply in this case. It stated: “Admittedly no recovery has been affected from the applicant and in such circumstances merely because the applicant was allegedly in touch with the co-accused persons, the bar of Section 37 of the NDPS Act is not attracted.”

3. Prolonged Incarceration: Justice Mahajan emphasized that Abdul Rab had been in custody for over 20 months without any charges being framed. The Court reiterated that the purpose of jail is to ensure the accused’s appearance during trial and not to impose punishment before guilt is proven. “The object of jail is to secure the appearance of the accused persons during the trial. The object is neither punitive nor preventive, and the deprivation of liberty has been considered as a punishment without the guilt being proved,” the Court stated.

Bail Conditions

The Court granted bail to Abdul Rab on furnishing a personal bond of ₹50,000 with two sureties of the same amount. The following conditions were imposed:

1. Abdul Rab must not tamper with evidence or threaten any witnesses.

2. He must appear before the trial court on all hearing dates.

3. He must inform the Investigating Officer (IO) of any change in address and meet the IO weekly.

4. He must not leave Delhi without prior approval from the IO.

The Court clarified that the bail order was specific to the peculiar facts of this case and would not influence other proceedings involving the applicant.

Cause Title: ABDUL RAB v. NARCOTICS CONTROL BUREAU

Case No: BAIL APPLN. 3023/2024

Date: January-20-2025

Bench: Justice Amit Mahajan 

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