Accused's Rights Under Article 21 Prevail Over Restrictions On Grant Of Bail Under NDPS Act: Delhi High Court

The Delhi High Court has observed that the rights of an accused enshrined under Article 21 of the Constitution of India prevail over the restrictions on grant of bail mentioned under Section 37 of the Narcotic Drugs And Psychotropic Substances Act, 1985.“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.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 Court granted bail to a man in an NDPS case registered in 2022. The FIR alleged that 2.615 Kgs of opium was found from the bag which the accused was carrying. 0.510grams of opium was recovered from a co accused.Granting him bail, the Court observed that the accused had already been in custody since July 18, 2022, i.e. more than 2 years 6 months. It noted that as per the chargesheet, there were total 22 witnesses cited but as of now, not a single witness was examined.“Hence, Article 21 of Constitution will prevail over the restrictions given under section 37 of NDPS Act as the petitioner has undergone more than 2 years 6 months of custody and the trial is not likely to conclude in near future,” the Court said. It was argued by the accused that there were no independent witnesses who had joined the investigation for search, even though the officers were already informed by secret information. It was also submitted that there was no photography and videography of the seizure process.On this, the Court observed only a bald averment was made in the chargesheet that 4-5 passers-by were requested to join but all of them denied citing justified compulsion.It further said that no details were recorded of such passers-by who were asked to join the probe and then refused subsequently. Noting that no notice under section 100 (8) of CrPC was given to the passers-by on their refusal to join the seizure process, the Court said:“Further, when the officers had prior secret information, no justifiable reasons have been given. As noted above, non joining of independent witnesses is not fatal to the case of the prosecution but while considering the bail application, the benefit must be extended to the petitioner.”Title: ZAKIR HUSSAIN v. STATE GOVT. OF NCT OF DELHICitation: 2025 LiveLaw (Del) 79Click here to read order

Accused's Rights Under Article 21 Prevail Over Restrictions On Grant Of Bail Under NDPS Act: Delhi High Court

Nupur Thapliyal

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