The Delhi High Court has held that, notwithstanding the rigours of section 37 of the NDPS Act, regular bail can be granted where the accused shows an arguable challenge to the legality of the search under section 42 of the NDPS Act, the recovered material forms part of licensed pharmaceutical stock raising a substantial issue whether the case concerns improper storage or breach of licence conditions rather than straightforward illicit possession, the accused has undergone prolonged undertrial incarceration with no near prospect of trial concluding, and similarly placed co-accused have already been granted bail.
In such a situation, the Court held that the cumulative effect of these factors was sufficient to conclude, prima facie and for the limited purpose of bail, that the petitioner had made out a case for release on regular bail, without expressing any final opinion on the merits of the prosecution case at trial.
A Single Judge Bench of Justice Anup Jairam Bhambhani identified four aspects as material for deciding the bail application: the alleged non-compliance with section 42 of the NDPS Act in relation to the godown search, the petitioner’s case that the drugs were bought, held and sold under valid licences but stored at a different premises, the prolonged incarceration and delay in trial, and parity with co-accused already enlarged on bail.
On section 42 of the NDPS Act, the Bench observed prima facie that the information was first received and recorded by SI Vishal Malik, whereas the communication to the superior officer was admittedly made by Inspector Manender Singh through a GD entry, although he was not the officer who had first received the information. The Bench found force in the petitioner’s submission that the safeguard in section 42 is intended to ensure contemporaneous recording and transmission by the officer who receives the information, so as to avoid reinterpretation, embellishment or interpolation later, and it held that the facts raised a debatable issue whether the mandatory safeguard had been adhered to in its true sense.
The Bench further observed that, at the bail stage, while no final finding should be rendered, an arguable infraction affecting the legality of the search is a relevant factor in examining the prosecution case under section 37 of the NDPS Act.
On the nature of the contravention, the Bench noted that the prosecution did not dispute at this stage that the relevant firms held pharmaceutical licences and that the medicines recovered were supported by bills and invoices. The Single Judge found that the matter was not one where wholly illicit pharmaceutical drug had been recovered from a person having no lawful permission to possess them, and that the issue appeared to be whether the case involved licensed possession with improper storage and possible breach of licence conditions, or whether the available material unmistakably pointed to drug trafficking.
Therefore, while recognising the State’s submission that breach of licensing conditions may still attract penal consequences and may have relevance under the NDPS framework, the Bench held that the petitioner’s contention on licensed stock and storage irregularity could not be brushed aside at the bail stage, particularly when the purchase invoices were also recovered from the godown.
On custody and trial delay, the Bench observed that the petitioner had been in custody since April 08, 2024, the matter was still at the stage of charge, and 44 prosecution witnesses had been cited. It recorded that the petitioner had undergone more than two years and one month of incarceration as an undertrial and that there was no immediate likelihood of the trial concluding in the near future. The Bench also reiterated that pre-trial detention cannot be allowed to assume the character of punitive detention where trial has not commenced and is bound to take time.
On parity and antecedents, the Bench considered it relevant that co-accused Rahul Varshney and Tushar Aggarwal, who formed part of the same alleged transactional chain, had already been granted regular bail. It also held that previous involvements, without conviction and absent demonstrated misuse of liberty, could not by themselves override the other factors in the case.
Briefly, the petitioner has sought regular bail under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in FIR registered under sections 22 and 29 of the NDPS Act at P.S. Special Cell, Delhi. The prosecution case was that the petitioner was arrested on April 08, 2024 after co-accused Rahul Varshney and Tushar Aggarwal, who had been arrested earlier, disclosed that they procured contraband from him. The prosecution further alleged that the petitioner operated Sunrise Pharma and also controlled NA Pharma, Medisales Pharma and AC Pharmaceuticals through other persons, using these entities to procure and distribute pharmaceutical drugs and contraband substances.
The petitioner’s case was that he and the relevant firms held valid pharmaceutical licences, that the medicines recovered were supported by bills and invoices, and that at the highest the allegation related to storage of licensed stock at the wrong premises, which according to him amounted at best to a regulatory lapse under the Drugs and Cosmetics Act rather than an NDPS offence. He also argued that he had no direct link with the ultimate unlicensed persons allegedly found in possession of the drugs, that the immediate purchasers Rahul Varshney and Tushar Aggarwal themselves held valid licences, and that both those co-accused had already been granted regular bail.
A central submission for the petitioner was that section 42 of the NDPS Act had not been complied with in relation to the search of the Sunrise Pharma godown, because the information allegedly first received by SI Vishal Malik was not forwarded by that officer to his superior, and instead was later reduced into writing and forwarded by Inspector Manender Singh. The petitioner also relied on the fact that he had remained in custody for more than two years, that charges had not yet been framed, and that 44 prosecution witnesses had been cited, indicating that the trial was likely to take considerable time.
The State opposed bail by contending that the petitioner played a central role in a well-organised drug trafficking network, that commercial quantities of Tramadol and Codeine Phosphate were recovered from the Sunrise Pharma godown at his instance, and that the record disclosed CDRs, financial transactions, invoices, mobile phone material and witness statements showing his operational control over the firms and movement of contraband through them. The State also argued that there was at least substantial compliance with section 42, that section 80 of the NDPS Act made the NDPS regime additional to the Drugs and Cosmetics Act, and that the twin conditions under section 37 were not satisfied in the petitioner’s favour.
