Delhi High Court – Orders
Durga @ Babli vs The State Govt Of Nct Of Delhi on 21 July, 2026
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 5049/2025
DURGA @ BABLI .....Petitioner
Through: Mr.Hitendar Mahalwal, Mr.Vaishaly
Singh, Ms.Ishra, Advocates.
versus
THE STATE GOVT OF NCT OF DELHI .....Respondent
Through: Ms. Shubhi Gupta, APP for State with
SI Pawan Kumar Spl Staff North
Distt.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 21.07.2026
1. The instant application has been filed on behalf of the applicant under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (erstwhile
Section 439 Cr.P.C) seeking grant of regular bail in relation to FIR
No.313/2021 registered at PS Timarpur qua the offence punishable under
Section 21/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(“NDPS Act“) and 201 of the Indian Penal Code, 1860 (“IPC“).
2. Learned counsel appearing on behalf of the applicant submits that the
applicant is innocent and has been falsely implicated in the instant case. He
also submits that the applicant has already suffered about 4 years 10 months
and 8 days incarceration as on 15.07.2026. It is submitted that there is no
other criminal case pending against the applicant, and the jail conduct of the
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applicant has been found to be satisfactory. It is further submitted that the
trial will take sufficient time in its completion. Out of total 20 witnesses
cited, the examination-in-chief of only 3 witnesses has been carried out. It is
also urged that co-accused Sanjay @ Sanju Kana has been enlarged on bail
since 2021.
3. The submissions made on behalf of the applicant are vehemently
opposed by learned APP for the State. She submits that considering that a
commercial quantity of heroine, i.e. 266 gms, has been recovered from the
present applicant, she is not entitled for grant of regular bail. It is contended
that the rigours of Section 37 of the NDPS Act are attracted and, therefore,
the applicant is not entitled to the discretionary relief of bail.
4. I have considered the submissions made by learned counsel for the
parties and also perused the record.
5. As per the prosecution case, acting on secret information, the
applicant was apprehended on 22.09.2021. After compliance with the
procedural requirements under the Section 50 of the NDPS Act, search of
the applicant allegedly resulted in recovery of 266 grams of heroin from
polythene bags carried by her. Thereupon, necessary action was taken and
FIR was registered.
6. During investigation, the applicant is stated to have disclosed that the
contraband was being supplied at the instance of co-accused Sanjay @ Sanju
Kana, of Aruna Nagar, Majnu Ka Tila Delhi, who was subsequently arrested
and has since been enlarged on bail. Investigation has culminated in filing of
the charge-sheet and the matter is presently pending trial. Except Sanjay, no
other accused person has been apprehended.
7. There can be no quarrel with the proposition that the alleged recovery
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is of commercial quantity and, therefore, the embargo contained in Section
37 of the NDPS Act would ordinarily govern the consideration of the
present application. Equally, however, it is now well settled that the
restrictions under Section 37 cannot be construed in a manner so as to
completely eclipse the constitutional guarantee of personal liberty under
Article 21 of the Constitution of India, particularly where an undertrial has
remained incarcerated for an unduly long period and the trial shows no real
prospect of early conclusion.
8. The Supreme Court in the case of Rabi Prakash versus The State Of
Odisha,1 has duly observed:
“4. As regard to the twin conditions contained in Section 37 of the NDPS Act,
learned counsel for the respondent – State has been duly heard.
Thus, the 1st condition stands complied with. So far as the 2nd condition re:
formation of opinion as to whether there are reasonable grounds to believe
that the petitioner is not guilty, the same may not be formed at this stage when
he has already spent more than three and a half years in custody.
The prolonged incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the Constitution and in
such a situation, the conditional liberty must override the statutory embargo
created under Section 37(1)(b)(ii) of the NDPS Act.
[Emphasis supplied]
9. In Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India,2 recognised that while Section 37 of the
NDPS Act imposes stringent conditions for the grant of bail, denial of bail
coupled with prolonged delay in trial would result in continued deprivation
of personal liberty without a timely adjudication of guilt, a consequence
incompatible with the guarantee of a fair and speedy trial under Article 21 of
the Constitution:
1
2023 SCC OnLine SC 1109
2
(1994) 6 SCC 731This is a digitally signed order.
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“15. On account of the strict language of the said provision very few persons
accused of certain offences under the Act could secure bail. Now to refuse bail
on the one hand and to delay trial of cases on the other is clearly unfair and
unreasonable and contrary to the spirit of Section 36(1) of the Act, Section
309 of the Code and Articles 14, 19 and 21 of the Constitution. We are
conscious of the statutory provision finding place in Section 37 of the Act
prescribing the conditions which have to be satisfied before a person accused
of an offence under the Act can be released. Indeed we have adverted to this
section in the earlier part of the judgment. We have also kept in mind the
interpretation placed on a similar provision in Section 20 of the TADA Act by
the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569].
Despite this provision, we have directed as above mainly at the call of Article
21 as the right to speedy trial may even require in some cases quashing of a
criminal proceeding altogether, as held by a Constitution Bench of this Court
in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225], release on bail, which can
be taken to be embedded in the right of speedy trial, may, in some cases be the
demand of Article 21. As we have not felt inclined to accept the extreme
submission of quashing the proceedings and setting free the accused whose
trials have been delayed beyond reasonable time for reasons already alluded
to, we have felt that deprivation of the personal liberty without ensuring speedy
trial would also not be in consonance with the right guaranteed by Article 21.
Of course, some amount of deprivation of personal liberty cannot be avoided in
such cases; but if the period of deprivation pending trial becomes unduly long,
the fairness assured by Article 21 would receive a jolt.”
[Emphasis supplied]
10. The Supreme Court in Union of India v. K.A. Najeeb,3 held that
statutory restrictions on the grant of bail, including those contained in
special enactments such as Section 43-D(5) of the UAPA and NDPS Act, do
not denude constitutional courts of their power to grant bail where continued
incarceration results in a violation of the fundamental right to personal
liberty and speedy trial guaranteed under Article 21 of the Constitution.
“12. Even in the case of special legislations like the Terrorist and Disruptive
Activities (Prevention)Act, 1987 or the Narcotic Drugs and Psychotropic
Substances Act, 1985 (“the NDPS Act“) which too have somewhat rigorous
conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005) 11 SCC 569 and
Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail3
(2021) 3 SCC 713This is a digitally signed order.
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when they had been in jail for an extended period of time with little possibility of
early completion of trial. The constitutionality of harsh conditions for bail in
such special enactments, has thus been primarily justified on the touchstone of
speedy trials to ensure the protection of innocent civilians.”
***
“15. This Court has clarified in numerous judgments that the liberty guaranteed
by Part III of the Constitution would cover within its protective ambit not only
due procedure and fairness but also access to justice and a speedy trial. In
Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v.
Union of India, it was held that undertrials cannot indefinitely be detained
pending trial. Ideally, no person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter. However, owing to the
practicalities of real life where to secure an effective trial and to ameliorate the
risk to society in case a potential criminal is left at large pending trial, the
courts are tasked with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial would not be possible
and the accused has suffered incarceration for a significant period of time, the
courts would ordinarily be obligated to enlarge them on bail.”
[Emphasis supplied]
11. The aforesaid principle has been specifically applied to prosecutions
under the NDPS Act by the Supreme Court in Mohd. Muslim @ Hussain v.
State (NCT of Delhi)4. The Court observed that an interpretation of Section
37 which results in an accused remaining in custody for years awaiting
conclusion of trial would militate against the guarantee of a speedy trial
under Article 21.
“22……Grant of bail on ground of undue delay in trial, cannot be said to be
fettered by Section 37 of the Act, given the imperative of Section 436A which
is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil
supra). Having regard to these factors the court is of the opinion that in the
facts of this case, the appellant deserves to be enlarged on bail.”
12. Tested on the aforesaid principles, this Court finds that the applicant
has remained in custody since 22.09.2021, i.e., for 4 years 10 months and 8
days. Investigation already stands completed and the charge-sheet has been
filed. The trial has progressed at a slow pace and out of 20 witnesses only 3
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witnesses examination-in-chief has been carried out, despite the long period
of incarceration undergone by the applicant. Trial doesn’t seem to be
concluded in near future and there is nothing on record to indicate that the
delay in conclusion of trial is attributable to the applicant. The applicant has
no previous criminal antecedents and her jail conduct has been reported to
be satisfactory.
13. In view of the aforesaid, the applicant is directed to be enlarged on
regular bail, on such conditions as may be imposed by the concerned Trial
Court.
14. Nothing stated hereinabove shall however be construed as an
expression of opinion on merits of the case.
15. In light of these observations, the application stands disposed of.
16. Copy of the order to be forwarded to the concerned Jail
Superintendent for necessary compliance.
PURUSHAINDRA KUMAR KAURAV, J
JULY 21, 2026
Nc
4
(2023) 18 SCC 166
This is a digitally signed order.
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