Failure to Produce Independent Witnesses Can Be Fatal: Delhi HC’s Significant Bail Ruling

In Sahil Sharma Alias Maxx v. State Govt. of NCT of Delhi (BAIL APPLN. 3068/2025), the Delhi High Court underscored a crucial principle in NDPS prosecutions — failure to associate independent witnesses, when possible, can weaken the prosecution's case at the bail stage. The Court noted that the lack of public witnesses and the absence of video or photographic evidence, coupled with a two-year delay in trial, justified granting bail despite the rigours of Section 37 NDPS Act.

This judgment is important not only for NDPS litigation but for broader criminal procedure, especially where recoveries hinge entirely upon police testimony.

Factual Background of the Case

The present bail application was filed in BAIL APPLN. 3068/2025, arising out of FIR No. 205/2023, Crime Branch, Delhi. The accused was apprehended on the basis of secret information while travelling in a grey car.

The following recovery was alleged:

Further arrests allegedly followed on applicant’s disclosure, including riders who supposedly helped deliver contraband. Small recoveries were claimed from co-accused Sonu and Chandan, and 4 kg ganja from co-accused L. Jicko Meitei.

Applicant’s Arguments

The defence raised three key grounds for bail:

1. Discrepancy Between Field Testing Kit and FSL Report

The substance initially tested as MDMA in the field kit was later confirmed as methamphetamine in FSL analysis. The applicant argued that such an inconsistency weakens the integrity of the prosecution’s narrative.

2. No Independent Witnesses Joined During Recovery

Despite the seizure happening in a public area, no public witness was joined, nor was the recovery photographed or videographed. Courts have earlier held that the absence of public witnesses does not automatically nullify prosecution claims, but when an opportunity existed, and no justification is provided, the defence gains an advantage.

3. Delay in Trial—Two Years in Custody With No Progress

The applicant was arrested in August 2023. Two years later, only charges had been framed, with the trial nowhere near a conclusion. Such prolonged incarceration without adjudication violates Article 21 safeguards.

Prosecution’s Stand

The State strongly opposed bail, citing the following:

1. Commercial quantity recoveries trigger the Section 37 NDPS embargo.
2. The accused was alleged to be kingpin of a drug network.
3. He had a previous NDPS conviction in Haryana.

Despite these claims, the High Court assessed whether material on record justifies continued custody.

Issues

The Court specifically dealt with:

1. Does the absence of independent witnesses weaken the prosecution case at the bail stage?
2. Do discrepancies in substance identification affect prima facie satisfaction under Section 37 NDPS Act?
3. Can prolonged pre-trial incarceration justify bail despite NDPS restrictions?

Court’s Observations

1. Independent Witnesses Are Not Mandatory, But Their Absence Can Raise Doubt

The Court acknowledged that cases cannot be discarded merely because witnesses are police officials. However, the absence of public witnesses or video evidence can create doubt, especially when opportunities existed, but no explanation appears convincing.

"Lack of independent witnesses, in some circumstances, casts a shadow over the case of prosecution."

The Court relied on Bantu v. State Govt of NCT Delhi (2024) to reinforce this principle. Where police had time to organise panch witnesses but did not, credibility concerns arise.

In this case, police admitted attempts were made to involve public witnesses, but they declined. The Court noted that this explanation shows the availability of witnesses, thereby making their absence notable.

2. Field Test v. Laboratory Result Discrepancy Cannot Be Ignored

The prosecution’s justification of the limited kit capability was not supported with documents. The Court held:

"In absence of supporting material, benefit of discrepancy must go to the accused."

While this alone did not entitle bail, it contributed significantly.

3. Monetary Transactions Alone Do Not Prove Drug Trafficking

Financial ties with co-accused, without clear linkage to contraband deals, cannot prima facie establish guilt. Mere bank transactions are insufficient without context.

4. Delay in Trial Overrides Section 37 NDPS Restrictions

This is the most consequential part of the judgment.

The Court referred to Supreme Court precedents—Mohd. Muslim (2023), Rabi Prakash (2023) and Man Mandal (2023)—holding that long incarceration without trial progress violates Article 21 despite NDPS bail restrictions.

Delays cannot become a justification for pre-conviction punishment.

Final Order

The Court granted bail with strict conditions, including:

• Personal bond of ₹25,000 with two sureties
• No inducement or tampering with evidence
• No leaving India without permission
• Mobile phone to remain active and traceable
• Address must remain fixed and updated to IO

Any fresh FIR may trigger cancellation.

Conclusion

Delhi High Court ruling marks a significant step toward balancing strict narcotics laws with due process guarantees. It clarifies that independent witness non-production, although not fatal by itself, becomes critical when corroboration is naturally expected but absent.

Combined with pre-trial incarceration stretching over two years without progress, the Court held continued detention unjustified—affirming that liberty cannot be suspended indefinitely on mere allegations.

As NDPS prosecutions increasingly rely on police-driven recoveries, this judgment is likely to guide future courts in developing a fairness-oriented approach to bail.

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