BNSS Heralds Transformative Era In Criminal Justice Promoting Transparency Aligned With Principles Of Fairness & Justice: Delhi HC

The Delhi High Court has said that Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) heralds a transformative era in criminal justice, promoting a transparent system aligned with the principles of fairness and justice.

The Court said thus in a bail application preferred by the accused in a case under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

A Single Bench of Justice Amit Mahajan observed, “This legislative enhancement is designed to ensure a more transparent and accountable approach in investigation. BNSS, with its comprehensive emphasis on technological integration, heralds a transformative era in criminal justice, promoting a system that is not only transparent and accountable but also fundamentally aligned with the principles of fairness and justice.”

The Bench further said that BNSS stipulates that the proceedings of search and seizure shall be recorded through any audio – video means preferably through a mobile phone.

Advocate Shivendra Singh represented the applicant/accused while Additional Standing Counsel (ASC) Rupali Bandhopadhya represented the respondent/State.

Brief Facts -

As per the prosecution case, the applicant allegedly used to supply ‘charas’ in Delhi after procuring it from Himachal Pradesh. It was alleged that between 3:30 p.m. to 4:30 p.m., the applicant would come to supply ‘charas’ to someone near Sanjay Akhada, Outer Ring Road. After receiving such information, at about 4:10 p.m., a raid was conducted and the applicant was apprehended.

A notice under Section 50 of the NDPS Act was served upon the accused and it was alleged that during the search, one bag was recovered from his possession from which 1.1 kg charas concealed in two packs of 550 grams each was recovered. The alleged recovery was of commercial quantity of contraband. Upon completion of investigation, the chargesheet was filed against the accused and charges were framed by the Trial Court. The Trial Court dismissed the regular bail application moved by the applicant and hence, he approached the High Court, seeking bail.

The High Court in view of the above facts noted, “Realizing the need of changing time, the legislature has now passed the Bharatiya Nagarik Suraksha Sanhita (‘BNSS’). The practice of photography and videography has now been made mandatory. Even though it is contended that, at the relevant time, the same was not mandatory, it cannot be denied that the Courts have, time and again, discarded the prosecution’s story and had emphasized on the importance of independent witnesses and additional evidence in the form of audiography and videography when the same can easily be obtained due to advancement of technology.”

The Court said that photography and videography are universally accepted as the best practices for better erudition and appreciation of the evidence and the same ensures that the prosecution is able to better document the recovery during the investigation.

“As noted above, these days mobile phones are handy with almost everyone especially, in a metropolitan city like Delhi. … It is not the case of the prosecution that the police team were not carrying any instrument (mobile phone) at the time of raid. The same even though, is not fatal to the case of the prosecution, however, at this stage, the benefit cannot be denied to the accused”, it added.

The Court further noted that it has come across a number of cases where the investigating authority has in fact done photography and videography of the recovery and it is peculiar that the investigating authorities, understanding the importance of such additional evidence, makes efforts to belie allegations of false implication and endorse the recovery of contraband by photography and videography in some cases, but fails to undertake any steps to do the same in other cases.

“Even if the explanation tendered by the prosecution for non joinder of independent witnesses is to be believed, it is more peculiar that despite the same, evidently, no effort to photograph or videotape the recovery has been made by the prosecution in the present case to endorse the credibility of the recovery”, it also said.

The Court emphasised that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it is settled that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial and various courts have recognized that prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act.

“In such circumstances, this Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the grounds of absence of independent witnesses and prolonged delay in the trial. … The applicant is also stated to be of clean antecedents. Therefore, I am satisfied that are reasonable grounds for believing that the applicant is not likely to commit any offence while on bail”, it concluded.

Accordingly, the High Court granted bail to the applicant on furnishing a personal bond of Rs. 50,000/- with two sureties of the like amount, subject to the satisfaction of the Trial Court.

Cause Title- Bantu v. State Govt of NCT of Delhi (Neutral Citation: 2024:DHC:5006)

Appearance:

Applicant: Advocates Shivendra Singh and Bikram Dwivedi.

Respondent: ASC Rupali Bandhopadhya and ARSC Nitin Singh.

Click here to read/download the Judgment