Gudepu Nageshwar Rao vs State Nct Of Delhi

Girish Kathpalia, J

The accused/applicant seeks regular bail in case FIR No. 297/2020 of Police Station Kashmere Gate for offence under Section 20/29 NDPS Act.

1.1 This bail application came up for the first hearing on 28.04.2025 before the predecessor bench and thereafter continued getting adjourned before different benches. Along with 179 such old pending bail applications, this application also was transferred to this bench.

1.2 Today is the first hearing before me. I have heard learned counsel for accused/applicant as well as learned APP assisted by IO/SI Vineet Kumar.

Broadly speaking, prosecution case is that on the basis of secret information, specifically naming three persons, including the present accused/applicant as suppliers of ganja, a trap was laid and the said three accused persons along with one more person were apprehended. The accused persons were found carrying 08 plastic bags which contained 82 packets of ganja. The  present accused/applicant and  his co-accused  Poleju Babu Rao were holding the plastic bag, while accused Solai Raj was placing the ganja packets in the same after lifting the packets from ground. On being weighed,  the  total  quantity  of  recovered  ganja  came  out  to  be  181.050  kg, which is much more than even the commercial quantity.

Learned counsel for accused/applicant seeks bail on the ground that there was no  independent public  witness  and  the  proceedings were neither photographed nor videographed. It is also submitted that since there is no clarity from investigation side as to by what mode the accused/applicant travelled  from  Andhra  Pradesh,  version  of  the  prosecution  does  not  appear believable. It is also contended by learned counsel that since it is not possible for two persons to carry 181 kg, the prosecution version is not believable. Learned counsel for accused/applicant also submits that accused/applicant is in custody since 17.10.2020 and trial is yet to conclude, so on the ground of delay in trial also, the accused/applicant is entitled to be released on bail.

On the other hand, learned prosecutor strongly opposes the bail application contending that the present case fails at the anvil of the twin conditions laid down under Section 37 NDPS Act. Learned prosecutor submits that the commercial  quantity of ganja  as per law is 20 kg,  while in the present case quantity of ganja recovered from the accused/applicant and his  associates  was  181.05  kg,  which  is  a  much  higher  quantity.  As  regards the  delay in  trial,  learned  APP  submits  that  there  is  no  undue  delay,  which can  be  taken  as  a  ground  to  release  the  accused/applicant  on  bail  in  such  a serious offence,  punishable  with imprisonment  which shall  not  be less than 10 years but which may extend to 20 years.

So far as  the alleged  delay  in  trial is concerned,  learned  counsel for accused/applicant  has  shown  me copies  of  the  ordersheets  of  the trial  court and after perusal thereof, I am in agreement with the learned prosecutor that this is  not  the case  of  such  delay that could  make the court ignore  the  twin conditions laid down under Section 37 NDPS Act. On almost each date, effective proceedings were conducted before the trial court. Few hearings were  ineffective  solely  for  the  reason  that either  the  Presiding  Officer  was on leave or there was no public prosecutor available.

5.1 Further, in view of nature of the trial proceedings, it cannot be disputed that recording testimony of each recovery witness in such cases consumes a lot of time, because the entire sequence of the recovery proceedings has to be testified and the case property has to be  identified by the witness. In such circumstances, if a witness is partly examined and further examination is deferred, the adjournment cannot be treated as delay. The court cannot ignore the ground realities under which trials in all criminal cases, especially the cases under NDPS Act, have to be conducted. Quite often, when the allegedly recovered contraband is opened in the courtroom  to  be  shown  to the  witness for identification, opening the  same leads to  obnoxious  and  dangerous  fumes,  which  leads  to  Passovers till  the fumes  disintegrate.  It  is  not  easy to get  the  recovered  contraband  identified from the  witness.  The  delay has  to  be  understood  in  terms  of  these  aspects also, besides the acute shortage of judges, prosecutors and even investigators.  The  delay  has  also  to  be  understood  on  the  basis  of  the  total board load of the concerned court.

5.2 Besides, the Supreme Court in the case of Union of India vs Vigin K. Varghese, 2025 SCC OnLine SC 2440, held that offences involving commercial  quantity of  narcotic  drugs  stand  on  a  distinct  statutory footing, in the sense that Section 37 of the NDPS  Act enacts specific embargo on grant of bail and obligates the court to record satisfaction on the twin conditions; and that mere prolonged incarceration and likely delay  cannot justify grant of bail in such cases without crossing the hurdle of the twin conditions laid down under Section 37 NDPS Act.

5.3 It is also disclosed by both sides that out of 17 prosecution witnesses, 07 have already been examined and they have supported prosecution. Besides that, one more witness is already in the witness box.

The remaining arguments advanced on behalf of the accused/applicant as recorded above do not help the accused/applicant in crossing the hurdle of twin conditions laid down under Section 37 NDPS Act.

Considering the above circumstances, I am unable to find it a fit case to grant bail at this stage.

Therefore,  the  bail  application  and  the  accompanying  application  are dismissed. However, the learned trial court is requested to expedite the trial despite all odds mentioned above.

Copy of this order be sent to the concerned Jail Superintendent for being informed to the accused/applicant.