Delhi High Court – Orders
Kamlesh Kumar Shukla vs State Nct Of Delhi on 3 August, 2026
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010304382026
+ BAIL APPLN. 2713/2026
KAMLESH KUMAR SHUKLA .....Petitioner
Through: Appearance not given.
versus
STATE NCT OF DELHI .....Respondent
Through: Ms. Shubhi Gupta, APP for the State.
SI Rahul, PS: Crime Branch.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 03.08.2026
1. By way of the present application, the applicant seeks grant of regular
bail in connection with FIR No.79/2024 for the offences punishable under
Section 20/25/29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 [NDPS Act] registered at police station Crime Branch Delhi.
2. Learned counsel appearing for the applicant submits that he is
innocent and has been falsely implicated. According to him, the applicant
has already suffered more than two years and three months of incarceration.
There is no other criminal case pending against him. The other co-accused
persons, namely, Sujit Kumar Shah, Harish Chandra Shukla and Ansh
Shukla (CCL) have already been enlarged on bail.
3. The submissions are opposed by learned counsel appearing for the
State, and she submits that bearing in mind the recovery of the commercial
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quantity of the contraband material i.e. ganja, the applicant is not entitled for
bail. It is submitted that the case of the present applicant stands on a
different footing than the case of the co-accused persons. It is stated that the
applicant was seen in CCTV footage and his complicity has been established
by the Investigating Agency.
4. I have considered the submissions made by learned counsel appearing
for the parties and have perused the record.
5. The facts of the case would indicate that the applicant along with Sujit
Kumar Shah and Ansh Shukla (CCL) were found to be in possession of the
contraband material i.e. 50 kg ganja.
6. The Court while considering the bail application of Sujit Kumar Shah
in the case of Bail Appn.1538/2205 in paragraphs 7 to 12, made the
following observations:
“7. It transpires that the applicant on the fateful day had accepted the
other co-accused as the travellers, namely Kamlesh Kumar and Ansh
Shukla and may have not been aware of the contents of the bags which
were being carried by them. At the time of recovery of the contraband, i.e.
the cannabis (Ganja), the co-accused were since found to be travelling in
the auto rickshaw which was being driven by the applicant, hewas
presumed to be one of their accomplice and based on that suspicion, he
was taken into custody
8. As regards the objection of learned APP qua the call detail record,
leamed counsel for the applicant would submit that the travellers used to
hire his auto rickshaw frequently. Therefore, they had exchanged their
telephone number with each other and quite frequently, whenever the auto
rickshaw was required to be hired, he was telephonically informed by the
co-accused. Regardless, he would submit that the applicant was not aware
of the nature of activities being carried out by the co-accused.
9. The applicant has been in custody for more than a year and four
months. The chargesheet has been filed and all the witnesses are formal
witnesses, no recovery is due to be made from the applicant and the trial is
likely to take long time as it is proceeding at a snail‟s pace.
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10. Applicant is being kept in preventive custody merely on an unfounded
suspicion that if he is let out, he may either tamper with evidence and/ or
influence witnesses. There is no probability of tampering with evidence as
the same has already been seized by the investigating agency. As regards
witnesses, they are all official and therefore, unlikely to be influenced,
even if there is any such apprehension by the prosecution.
11. Bail allows an accused to maintain his freedom until his guilt or
innocence is determined. Trial is likely to take long time as it is proceeding
at a snail‟s pace. Whereas, applicant has already been in jail for the past
more than (being behind bars since 15.04.2024) 1 year and 4 months.
12. The applicant is stated to be the sole breadwinner of his family and
belonging to the lower strata of the society earning his livelihood by
driving Auto Rickshaw. He is responsible to tend to his elderly parents,
wife and children who are solely dependent on him for survival. In his
absence, the family is moving towards literal starvation and penury.”
7. With respect to Harish Chand Shukla, the Court in paragraphs 7
onwards has made almost similar observations:
“7. It transpires that the contraband which is stated to be cannabis (in the
natural form of leaves and dred flowers, popularly also known as
„grass‟/ganja) was recovered from the other co-accused. Apart therefrom,
on a specific query put to the learned APP qua nature of the same, as to
whether it was 1n concentrated form or in the natural, it has been
confirmed from the seizure memo which has been brought to the Court by
the IO that the contraband was being carried indeed in the form of grass/
leaves and flowers etc. i.e. in its natural form.
8. It is only in course of the investigation that based on the disclosure
statement, the name of the applicant emerged. The disclosure statement is
also stated to be that of his own son, who is a juvenile as well as another
coaccused, who is stated to be an acquaintance of his son.
9. Furthermore, the applicant has already been in custody for more than 1
year and 3 months and the trial is proceeding at snail‟s pace. As regards
the applicant either jumping the bail or otherwise not making himself
available during the trial or committing the repeat offences. the same
seems to be rather an unfounded suspicion, as he is stated to be serving for
Border Security Force as Assistant Sub Inspector though, of course,
currently under suspension due to the criminal proceedings arising out of
the FIR in question.
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10. Applicant is being kept in preventive custody merely on an unfounded
suspicion that if he is let out, he may either tamper with evidence and/ or
influence witnesses. There is no probability of tampering with evidence as
the same has already been seized by the investigating agency. As regards
witnesses, they are all official and therefore, unlikely to be influenced,
even if there is any such apprehension by the prosecution.
11. Bail allows an accused to maintain his freedom until his guilt or
innocence is determined. Trial is likely to take long time as it is proceeding
at a snail‟s pace.
12. The applicant is stated to be the sole breadwinner of his family. His
wife suffers from Phaleria and swollen legs, he also has a child to take
care of, and in his absence, family is moving towards literal starvation and
penury.
13. Considering the totality of facts and circumstances, the stage of the
trial, the role attributed to the applicant in the FIR and nature of the
contraband, I am of the view that this is a fit case for granting bail to the
applicant at this stage.
14. In the premise, application is allowed. The applicant is directed to be
released on bail on his fumishing bail bonds and surety of an equivalent
like amount to the satisfaction of the Trial Court/Duty Judge concerned as
the case may be, subject to the usual conditions to be imposed by the
learned Trial Court.
15. Any observation made herein above is only for the purpose of
disposing of the instant bail application and not to be construed, in any
manner, as any expression on the merits of the pending case and the trial
shall proceed without being influenced either way by the same. In case,
applicant is found to be involved or gets involved in any offence while on
bail, the prosecution shall be at liberty to seek cancellation of his bail in
the instant case.
16. Accordingly, the bail application stands disposed of.”
8. It be noted that as per the prosecution story, the delivery was received
from Harish Chandra Shukla. It is the prosecution case that Harish Chandra
Shukla was the kingpin. The applicant and Sujit Kumar Shah both have been
attributed to have possessed 25.530 kg and 20,940 kg of ganja, respectively.
It is, thus, seen that even the recoveries have been made from both the
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applicants.
9. There can be no quarrel with the proposition that the alleged recovery
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.
10. 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]
11. 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
1
2023 SCC OnLine SC 1109
2
(1994) 6 SCC 731
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incompatible with the guarantee of a fair and speedy trial under Article 21 of
the Constitution:
“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]
12. 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
3
(2021) 3 SCC 713This is a digitally signed order.
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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 bail
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]
13. 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.”
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Bearing in mind the overall facts and circumstances of the case, the long
incarceration of the applicant, of about two years three months, as also the
factum of only 2 out of 21 witnesses having been examined, the trial taking
sufficient time for completition, and furthermore because there is no other
criminal case pending against the applicant and the applicant is a first-time
offender, this Court deems it appropriate to enlarge the application on
regular bail.
14. In view of the aforesaid, the applicant is granted regular bail subject
to such terms and conditions as may be imposed by the trial Court.
15. Application stands disposed of.
PURUSHAINDRA KUMAR KAURAV, J
AUGUST 3, 2026/p
4
(2023) 18 SCC 166
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