Delhi HC Warns State: Brief Your Prosecutor or Accused Walk Free, DCP Summoned in NDPS Bail Matters
Justice Girish Kathpalia directed the concerned DCP to personally appear and brief the prosecutor in two pending NDPS bail applications, warning that failure would be taken as the State's consent to release both accused on bail forthwith.
The High Court of Delhi, on 19 August 2026, took strong exception to the failure of Delhi Police investigating officers to brief the Additional Public Prosecutor before two NDPS bail hearings, calling it yet another instance of how the police treats the liberty of individuals. Justice Girish Kathpalia, sitting singly, was hearing bail applications filed by Ajay Kumar (Bail Appln. 4708/2025, arising from FIR No. 136/2024, PS Special Cell) and Md Faizan Beg (Bail Appln. 4833/2025, arising from FIR No. 258/2023, PS Special Cell), both for offences under Section 22 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act. Rather than grant bail outright or adjourn again to no purpose, the Court placed the consequences squarely on the DCP: appear in person and brief the prosecutor by the next date, or the Court will treat that absence as the State's acceptance that bail should be granted.
Two Bail Applications, Different FIRs, the Same Complaint
The two applications were pending before different benches since December 2025 before being transferred for hearing together on 19 August 2026. When the matters were called, the Additional Public Prosecutor, Mr. Amit Ahlawat, expressed anguish that despite both applications being old pending matters, the Investigating Officers had not met him to brief him before the hearing. The APP stated he was therefore unable to oppose the bail applications in any meaningful way.
The court observed that this was not an isolated failure. The order records that “despite repeated directions, the Investigating Officers do not brief the prosecutor in time.” The pattern, the court noted, left the prosecution functionally silent in proceedings directly bearing on the continued incarceration of the accused.
Adding to the gravity of the position, the court noted that a co-accused in one of the matters, Ashwani Kumar, had already been granted bail by the same court on 3 April 2025. The judgment in that bail application, at paragraph 7, had recorded detailed circumstances pointing to alleged fabrication of the case diary, though the court had left that question open for the trial court to examine independently. Justice Kathpalia observed that those same circumstances were relevant to the present bail applications as well — yet the APP was unable to address them because he had not been briefed by the IO.
The Court's Reasoning: Adjournment Alone Solves Nothing
Justice Kathpalia framed the position before him starkly. The court identified two options: grant bail forthwith because the prosecution was unable to oppose, or adjourn again and extend the period of pendency. The court rejected the second option as illusory, reasoning that there was no basis to expect the IO would brief the prosecutor any differently on the next date if directed again in the same manner as before.
The court's solution was to raise the accountability to a higher level within the police hierarchy. Rather than address the IOs alone, it directed the concerned Deputy Commissioner of Police to personally appear on the next date after ensuring that the learned prosecutor had been briefed about the investigating agency's stand on both bail applications.
The court made the consequence explicit: if the DCP does not appear on the next date, or does not brief the prosecutor beforehand, “it shall be assumed that the State wants both accused persons to be released on bail forthwith.” This formulation effectively converts the State's continued procedural default into deemed consent to bail — a mechanism designed to break the cycle of adjournments without accountability.
The court also directed that a copy of its order be sent to the Commissioner of Police for ensuring compliance, extending awareness of the default to the top of the Delhi Police command structure.
Context: Co-Accused Already on Bail, Case Diary Questioned
The backdrop matters. The 3 April 2025 bail order in the case of co-accused Ashwani Kumar had recorded specific circumstances suggesting fabrication of the case diary. That court had consciously kept the finding open for the trial court to examine, but the observations had been placed on the record. Justice Kathpalia's order on 19 August 2026 records that those circumstances remain relevant for Ajay Kumar and Md Faizan Beg as well. The prosecution's inability to address this aspect — because the IO had not briefed the APP — left that potentially significant material uncontested before the court.
Both accused face charges under Section 22 and Section 29 of the NDPS Act. Section 22 concerns punishment for contravention involving psychotropic substances, and Section 29 deals with abetment and conspiracy. Both carry significant minimum sentences, making bail ordinarily more difficult to secure. That the court came close to granting bail outright — purely because the prosecution failed to appear prepared — reflects the seriousness with which it treats the procedural default.
Order
Justice Girish Kathpalia directed the concerned DCP to personally appear before the court on 24 September 2026, in the Advance List, after briefing the learned Additional Public Prosecutor on the investigating agency's position in both bail applications. If the DCP fails to appear or the prosecutor remains unbriefed, the court recorded it will treat that as the State's acceptance that both accused should be released on bail immediately. A copy of the order was directed to be sent to the Commissioner of Police for compliance.