Liberty Cannot Be Sacrificed for Procedural Lapses: Bombay High Court Grants Bail in NDPS Case, Slams Investigating Agencies for Violating Legal Safeguards

Strict Compliance with NDPS Procedure is Essential – Failure to Follow Law Weakens Prosecution’s Case - In a significant ruling Bombay High Court granted bail to four individuals accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), holding that procedural lapses in the seizure and certification of contraband vitiated the prosecution’s case at the prima facie stage. While acknowledging the seriousness of drug-related offenses, the Court ruled that non-compliance with mandatory provisions of the NDPS Act, including the absence of a valid Form 5 certificate from a Magistrate under Section 52A, cannot be ignored when deciding bail applications.

The Court made it clear that investigating agencies must strictly adhere to statutory requirements, failing which courts cannot justify prolonged incarceration, even in cases involving commercial quantities of narcotics. Observing that liberty cannot be denied merely because the allegations are serious, the Court held that procedural safeguards exist to ensure that investigations remain fair, and a failure to follow them would directly impact the strength of the prosecution’s case.

"Failure to Follow Due Process Undermines the Prosecution’s Case" – High Court Rejects Opposition to Bail
The prosecution argued that the accused were found in possession of commercial quantities of Codeine Phosphate syrup, Nitrazepam tablets, and Alprazolam tablets, substances classified under the NDPS Act. Contending that Section 37 imposes stringent conditions for bail in cases involving commercial quantities, the prosecution insisted that once the accused were caught with the drugs, bail should be denied unless they could prove prima facie innocence.

The Court rejected this argument, stating that Section 37 does not override the fundamental principles of fairness in criminal trials. It ruled that the burden to prove compliance with statutory safeguards lies on the prosecution, and when such compliance is lacking, courts are duty-bound to intervene.

"The NDPS Act is undoubtedly a stringent law, but it does not grant investigating agencies the right to bypass mandatory legal safeguards. The failure to follow the prescribed procedure under Section 52A is not a mere irregularity—it strikes at the very foundation of the prosecution’s case. If statutory requirements are ignored, courts cannot mechanically deny bail simply because commercial quantities are involved," the Court observed.

"WhatsApp Chats Alone Cannot Establish Guilt in Drug Cases" – High Court Questions Electronic Evidence Used by Prosecution

The prosecution heavily relied on WhatsApp conversations extracted from the mobile phones of the accused, arguing that these messages established their role in drug trafficking. The Court, however, dismissed this claim, holding that mere digital communication, without independent corroboration, is insufficient to deny bail.

"Printouts of WhatsApp chats, without supporting evidence linking the accused to physical possession or active participation in narcotics distribution, cannot form the sole basis for incarceration. The Supreme Court has consistently held that WhatsApp messages, unless verified with call records, financial transactions, or direct evidence, do not constitute conclusive proof of criminal involvement," the Court ruled.

Observing that the WhatsApp conversations submitted by the prosecution contained no direct reference to illicit drug transactions, the Court held that electronic evidence must be supported by physical evidence or witness statements to be admissible.

"Failure to Obtain Mandatory Certification Under Section 52A Weakens the Seizure Proceedings" – High Court Finds Prosecution’s Case Defective
The Court took strong note of the failure to obtain certification of the seized contraband from a Magistrate, as required under Section 52A of the NDPS Act, holding that this omission raised serious doubts about the integrity of the evidence. It observed that Rule 8 and Rule 18(1) of the NDPS (Seizure, Storage, Sampling, and Disposal) Rules, 2022, make it mandatory for the investigating officer to obtain a certification in Form 5, verifying the correctness of the inventory and sampling process.

"The law does not permit shortcuts in narcotics cases. The NDPS Act prescribes clear safeguards to ensure that evidence is not tampered with, and the most crucial safeguard is judicial certification under Section 52A. The absence of such certification raises the possibility of procedural abuse and creates a reasonable doubt that cannot be ignored at the bail stage," the Court ruled.

"Liberty Cannot Be Denied Due to Procedural Lapses" – High Court Issues Directions for Stricter Compliance in Future Cases
Granting bail to all four accused, the Court directed the Maharashtra Police and investigating agencies to strictly comply with the procedural safeguards laid down in the NDPS Act and the 2022 Rules. Expressing concern over recurring procedural violations in narcotics cases, the Court directed that a copy of the judgment be sent to all Commissioners of Police and Superintendents of Police in Maharashtra.

"The Registry of this Court shall forward a copy of this judgment to the Director General of Police, Maharashtra, and to all police departments investigating NDPS cases. It must be ensured that officers handling narcotics investigations are adequately trained on compliance with the procedural requirements under Section 52A and the NDPS Rules, 2022. Any failure to adhere to statutory provisions in future cases will invite serious consequences," the Court directed.

The Court emphasized that legal safeguards exist to protect both the innocent and the integrity of investigations, and any deviation from these safeguards must be treated as a violation of the accused’s rights.

"Bail Cannot Be Denied When the Chain of Evidence is Broken" – High Court Lays Down Strict Conditions for Release
The Court ordered the immediate release of the accused on bail, directing them to comply with stringent conditions to prevent misuse of their liberty. It ruled that while procedural lapses justified granting bail, the accused must not interfere with the ongoing trial or engage in any criminal activity.

"The accused shall report to the nearest police station on the first Monday of every month, shall not leave the State of Maharashtra without prior court approval, and shall not attempt to influence any witnesses or tamper with evidence. Any violation of these conditions shall result in immediate cancellation of bail," the Court ruled.

It further clarified that while the bail order was based on procedural lapses, it did not amount to an acquittal or a final determination of innocence. The prosecution was directed to rectify procedural deficiencies and proceed with the case in accordance with law.

This judgment serves as a strong reminder that the NDPS Act, despite being a stringent law, does not override the fundamental principles of fairness and due process. The High Court has reaffirmed that bail cannot be refused solely on the basis of the seriousness of allegations—legal safeguards must be strictly followed to ensure a fair trial.

Observing that a failure to comply with mandatory legal provisions weakens the prosecution’s case, the Court has underscored the importance of procedural compliance in ensuring that justice is served fairly and transparently. The ruling sets a precedent that investigative lapses will not be overlooked, even in cases involving stringent anti-drug laws.

By directing police authorities to ensure strict adherence to NDPS procedural safeguards in all future investigations, the Bombay High Court has sent a clear message that liberty cannot be curtailed simply because an offense is serious—due process must be followed at every stage.

Date of Decision: 04 March 2025