[NDPS] Delhi High Court grants bail to man who has served more than half of minimum sentence

Noting that the applicant being an under-trial prisoner has served more than half of the minimum sentence prescribed, the Delhi High Court granted bail to a Man charged under provisions of the Narcotics Drugs Psychotropic Substances (NDPS) Act, 1985.

Considering the delay in conducting the trial and the resulting long incarceration, Justice Purushaindra Kumar Kaurav granted bail to a man named, Rakesh Kumar Bhola booked under Sections 22, 25, 25A, and 29 of the NDPS Act.

The counsel for Bhola submitted that he has been in judicial custody since August 2018 and there is no possibility of the trial being completed in the near future. He contended that Bhola’s medical condition is not good and he has been advised ‘Cholecystectomy’ and reassess for Hernia.

It is also submitted that Bhola was wrongfully treated by doctors in jail, resulting in prostatitis symptoms. He began treatment for prostatitis, and according to the most recent medical report, he was advised to perform ‘Self Intermittent Catherization’ cleaning at least twice a week with aseptic precautions. He claims that such treatment is not available in judicial custody.

Opposing the contentions, the counsel for the prosecuting agency submitted that Bhola has been accused in connection with serious offences, that he was knowingly and deliberately involved in the fraudulent diversion of 2348 kg of Pseudoephedrine Hydrochloride from one premise as well as the subsequent disposal of 1300 kg of Pseudoephedrine Hydrochloride from another.

It was further contended that Bhola was involved in the illicit trafficking of Ketamine Hydrochloride, a psychotropic substance, and Pseudoephedrine. Counsel further alleged Bhola of being involved in repacking and diversion of the contraband substance.

Taking note of the submissions, Justice Kaurav noted that Section 37 of the NDPS Act governs the grant of bail in a case involving a commercial quantity of contraband substances and a plain reading of the provision clearly indicated that bail can be granted only when the requirements of aforementioned provision are fulfilled.

The single-judge bench stated that there is no doubt that the quantity of contraband substance, in this case, falls within the commercial quantity and the provisions of the NDPS Act were enacted against Bhola to address the negative impact of narcotic drugs on society.

Keeping in mind the object of the NDPS Act and the stringent conditions of granting bail, the court observed that deprivation of personal liberty without the assurance of a speedy trial is an aspect that must be considered.

Court noted that Bhola’s Nominal roll shows that he has served 6 years, 4 months, and 10 days in prison as of September 20, 2022, and has been granted interim bail twice from June 8, 2018, to August 24, 2018, and April 15, 2019, to December 20, 2019. The court also noted that his behavior in jail is reported to be good, with no instances of misusing his liberty while on interim bail.

“The punishment prescribed under section 22 of the NDPS Act can extend up to 20 years and shall not be less than 10 years. Section 22 of the NDPS Act, further, prescribes for a fine that shall not be less than Rs. 1,00,000/-, but may extend to Rs. 2,00,000/-. Section 36 of the NDPS Act, requires for constitution of Special Courts. Section 36(A) requires that the offences should be triable by Special Courts,” the court added.

Court further noted that according to the complaint, the prosecution has named 53 witnesses, out of which nine prosecution witnesses have been cross-examined so far. It is also noted that there is no averment in the Status Report, in this case, indicating that the trial is being delayed at the request of the current applicant.

Thus, noting that the rigors of Section 37 of the NDPS Act would not be invoked when dealing with an application for bail filed by an under-trial prisoner who has served more than half of the minimum sentence prescribed, the court stated that the constitutional right of the applicant for speedy trial stands violated.

Conclusively, the court observed, “The delay in conducting the trial and the resulting long incarceration can also be taken into consideration for the grant of bail. This court is conscious of the fact that the delay or long incarceration alone should not be the sole and dominant factor and, therefore, this court has considered the allegations against the applicant, his role in the commission of the alleged offence, and it has been found that the applicant is not the main accused.”

Accordingly, the court allowed Bhola’s bail application on furnishing a personal bond of Rs. 2,00,000, with two sureties of like amount.

Case Title: Rakesh Kumar Bhola v. Directorate of Revenue Intelligence