Absence of Videography Alone Not Sufficient For Bail When Custody is Less Than a Year: Delhi High Court Refuses Bail in Commercial Quantity Heroin

Benefit of minor discrepancy in weight of samples will not enure to the petitioner when FSL does not suggest tampering - Delhi High Court (Justice Vikas Mahajan) refusing regular bail to the petitioner charged under Sections 21 and 29 of the NDPS Act. The Court held that mere absence of videography and minor discrepancies in sample weights are not sufficient grounds for bail when the accused has not completed prolonged custody and the offence relates to commercial quantity.  

The petitioner was apprehended on the intervening night of April ½, 2024, along with his brother Nazim near Shamshan Ghat, Ghazipur, Delhi. Based on a specific intelligence input, a raid was conducted by the Crime Branch, leading to the recovery of 600 grams of heroin from the petitioner’s backpack. His brother Nazim was found without any recovery but was also arrested.

 The petitioner challenged the arrest and sought bail on the grounds of discrepancies in sample weights, lack of independent witnesses, absence of videography, and his clean antecedents.

The petitioner’s primary contention was that the samples, which were recorded as 5 grams each before the Magistrate, weighed only 4.3 grams and 4.4 grams according to the FSL report. He argued that this discrepancy suggests tampering with the seal and handling of the samples.

 The Court rejected this argument, observing:  

• “The variation is miniscule which could be for the reason of moisture being present at the time of sampling. Further, it is not the case of the petitioner that the FSL report indicates that the samples were received by the FSL in tampered condition nor any material has been pointed out which suggests the tampering of sample.”  

 The Court fortified Its view by referring to Yunus Khan v. State (NCT of Delhi), 2024 SCC OnLine Del 3893, where a similar minor discrepancy was held insufficient to grant bail.

 On the issue of absence of videography and independent witnesses, the Court acknowledged:

 “No doubt the petitioner does not have criminal antecedents and trial has not yet commenced as the case is still at the stage of framing of charge, but custody of the petitioner is just about one year as the petitioner was arrested on 12.04.2024.”  

The Court recognized that the Bantu v. State, 2024 SCC OnLine Del 4671 decision granted bail under similar allegations due to prolonged incarceration of nearly five years. However, Justice Mahajan noted:

• “In the present case, the custody period is just about one year and cases in which the Hon’ble Supreme Court relaxed the rigours of Section 37 of the NDPS Act on account of delay in trial, the custody period varied from 1½ years to 3½ years.”

Dismissing the bail plea, the Court held:

• “Having regard to the aforesaid circumstances, this Court is of the view that the petitioner is not entitled to regular bail at this stage on account of delay in trial. However, liberty is granted to the petitioner to approach this Court with fresh application for bail after six months in case there is no substantial progress in the trial.”

This judgment reiterates the position that absence of videography, lack of independent witnesses, or minor sample weight discrepancies, by themselves, cannot form a ground to override the stringent conditions of Section 37 of the NDPS Act, especially when the accused is in custody for less than a year.

 As the Court aptly concluded:  

• “In the instant case, the additional factor which weighed with the Court in Bantu (supra) was long incarceration of 4 years and 8 months… but custody of the petitioner is just about one year.”

The case reinforces the Court’s commitment to strictly applying Section 37 in commercial quantity cases under the NDPS Act.

Date of Decision: 01.04.2025