Lack Of Videography, Independent Witnesses During Contraband Seizure Relevant Factors For Granting Bail Under NDPS Act: Delhi High Court

"Absence of any independent evidence to support recovery (presence of public witnesses, videography or photography) is a relevant factor while considering applications for grant of bail as the same casts a shadow over the very fulcrum of the case," Delhi High Court, in a significant ruling, held that the absence of independent witnesses and the failure to document a contraband seizure through photography or videography are relevant factors for granting bail under the Narcotic Drugs and Psychotropic Substances Act, 1985.

 A bench of Justice Prateek Jalan observed that while such procedural lapses do not automatically nullify the prosecution's case, they introduce reasonable doubt regarding the integrity of the recovery at the bail stage. The court emphasized that the restrictions of Section 37 of the NDPS Act cannot be applied in a manner that defeats the constitutional guarantee of life and liberty under Article 21.

The applicant, Sarfaraj, was arrested on February 17, 2023, following a raid conducted by the Delhi Police near Police Colony, Narela, based on secret information. The prosecution alleged that the applicant was found in possession of a plastic bag containing five packets of ganja weighing a total of 22.564 kilograms, which constitutes a commercial quantity. He remained in judicial custody for over three years and three months before approaching the High Court for regular bail under Section 483 of the BNSS.

The primary question before the court was whether the applicant was entitled to bail despite the rigours of Section 37 of the NDPS Act, given the prolonged period of incarceration and the slow progress of the trial. The court was also called upon to determine the weight to be given to the lack of independent witnesses and photographic documentation of the alleged seizure in a public place.

Section 37 NDPS Act vs. Article 21 Of The Constitution

The court began by acknowledging that the recovery of over 20 kilograms of ganja attracted the stringent conditions of Section 37 of the NDPS Act. However, Justice Jalan noted that it is well-settled that these restrictions cannot override the fundamental right to a speedy trial. The bench cited the Supreme Court’s rulings in Mohd. Muslim v. State (NCT of Delhi) and Dheeraj Kumar Shukla v. State of Uttar Pradesh to underscore that prolonged pre-trial detention violates Article 21.

The court observed that the satisfaction contemplated under Section 37 regarding the "reasonable grounds for believing that the accused is not guilty" is only prima facie in nature. The bench clarified that the court is not required, at the stage of bail, to arrive at a finding of guilt or innocence beyond reasonable doubt. The bench noted that the considerations relevant to Section 37 must be assessed holistically to ensure that constitutional protections are not rendered illusory.

"Prolonged incarceration at the pre-trial stage, even in cases under special statutes containing stringent bail conditions, would be violative of the right to life and liberty guaranteed under Article 21 of the Constitution."

Absence Of Independent Witnesses And Documentation During Seizure

On the merits of the seizure, the court highlighted that the recovery was allegedly made at 7:40 PM near a Police Colony, yet no public witnesses were associated with the search. Furthermore, the investigating agency failed to document the seizure through photography or videography. The court relied on the coordinate bench decision in Bantu v. State Govt. of NCT of Delhi, which held that such omissions are critical even for cases investigated prior to the mandatory requirements introduced by the BNSS.

Justice Jalan observed that in instances where the factum of recovery is supported only by official witnesses, the lack of videography or photography casts doubt on the veracity of the prosecution’s case unless justified by cogent reasons. The court noted that in modern times, where mobile phones with cameras are ubiquitous, the failure to record a seizure in a public place impacts the transparency and reliability of the search process.

"The absence of independent witnesses, especially in crowded public places, warrants careful judicial scrutiny. This practice undermines the transparency of the seizure procedure and weakens the evidentiary value of the recovery."

Delay In Trial And Personal Circumstances Of The Accused

The court took serious note of the fact that the applicant had been in custody for over three years and three months. While the prosecution evidence had commenced, only nine out of seventeen witnesses had been examined, making the conclusion of the trial in the near future unlikely. The bench also considered that the applicant is a person with a disability, a factor it deemed relevant at the stage of bail.

Regarding the applicant’s criminal antecedents, the court noted that although he had six prior involvements, none were related to the NDPS Act, and he had been acquitted in one. Citing Prabhakar Tewari v. State of Uttar Pradesh, the court held that prior involvements do not, per se, warrant the denial of bail when other factors favour the applicant's release.

"The extended period of custody, combined with the delay in trial, justifies the Applicant’s plea for conditional liberty through the grant of bail, thereby balancing the rights of the accused with the requirements of justice."

Final Directions And Conditions Of Bail

The High Court allowed the application and directed that the applicant be released on bail subject to furnishing a bond of Rs. 50,000 with one surety. The court imposed several conditions, including that the applicant shall not leave the country, must surrender his passport, and must appear before the Special Court on every date of hearing. He was also directed to keep his mobile number operational and switched on at all times and was strictly prohibited from contacting or inducing any prosecution witnesses.

The court concluded that the combination of prolonged incarceration, the slow pace of the trial, and the procedural lapses during the seizure justified the grant of bail. The ruling reinforces the principle that procedural safeguards, including the involvement of independent witnesses and modern documentation methods, are essential to maintain the integrity of the NDPS Act’s severe provisions.

Date of Decision: 19 May 2026