Delhi High Court Denies Bail in Narcotics Case Due to Commercial Quantity of Heroin Recovered from Foreign National; Holds Compliance with Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985 Not Established

Court’s Decision:

The Delhi High Court dismissed the bail application of the accused, a foreign national, apprehended with 9.950 kg of heroin at the IGI Airport, noting that the recovery was of a commercial quantity and thus attracted the strict conditions under Section 37 of the NDPS Act. The court emphasized that “mere non-compliance of procedural aspects would not vitiate the prosecution’s case if there is sufficient material against the accused.” The court held that there were no reasonable grounds to believe that the accused was not guilty or that he would not commit an offence if released on bail.

Facts of the Case:

1. The accused, a 71-year-old foreign national, arrived at New Delhi from Doha and was intercepted by Customs officials on suspicion.
2. His baggage was searched, and 9.950 kg of off-white powdery substance, suspected to be heroin, was recovered from a false compartment in his black trolley bag.
3. The recovered substance tested positive for heroin using a field drug testing kit and was seized. The accused was arrested on 30.10.2022.
4. Samples were drawn as per procedure, and the Central Revenues Control Laboratory confirmed the substance as heroin on 31.01.2023.
5. The accused was charged under Sections 21(c) and 23(c) of the NDPS Act for possessing and attempting to smuggle a commercial quantity of a narcotic drug.
6. The first bail application was dismissed by the Special Judge (NDPS) on 27.02.2024, leading to the present bail application before the Delhi High Court.

Issues:

1. Whether the procedural non-compliance under Section 50 and 52A of the NDPS Act can be grounds for bail.
2. Whether the discrepancies in the weight of the seized contraband affected the legality of the recovery.
3. Whether the accused, being a foreign national, poses a flight risk if released on bail.
4. Applicability of Section 37 of the NDPS Act in light of the commercial quantity recovered.

Petitioner’s Arguments:

1. Non-compliance with Section 50: The petitioner argued that the mandatory compliance under Section 50 of the NDPS Act was not adhered to, as the accused was not informed of his right to be searched in the presence of a Magistrate or the “nearest” Gazetted Officer.
2. Delay in Sampling: There was a 16-day delay in drawing samples from the seized contraband, violating the standing order and casting doubts on the integrity of the recovered substance.
3. Discrepancies in Weight: There was a 9-gram discrepancy between the initial weight recorded and the weight measured during sampling, indicating possible tampering or errors in the procedure.
4. Flight Risk Not Proven: The petitioner argued that being a senior citizen with health issues, there was no reason to assume that he would abscond if granted bail.
5. False Implication: The accused contended that the contraband was planted and the case number was pre-allocated even before his baggage was searched, pointing to a conspiracy.

Respondent’s Arguments:

1. Compliance with the Law: The respondent countered that all procedures under the NDPS Act were duly complied with, and there was no procedural irregularity that would vitiate the case.
2. Quantity Recovered: The quantity recovered being of commercial nature automatically attracted the embargo under Section 37 of the NDPS Act.
3. Flight Risk: Given the seriousness of the offence and the accused’s foreign nationality, the likelihood of absconding if granted bail was high.
4. Strong Evidence: There was strong evidence, including statements from independent witnesses and compliance with procedural safeguards, substantiating the recovery and seizure.

Analysis of the Law:

1. Section 50 Compliance: The court held that non-compliance with Section 50 would not invalidate the search and seizure if the recovery was made from a baggage and not the person of the accused.
2. Section 52A Compliance: Minor discrepancies in the weight of contraband due to environmental factors were held to not affect the prosecution’s case.
3. Applicability of Section 37: The commercial quantity recovered triggered the embargo under Section 37 of the NDPS Act, making the bail conditions stringent.
4. Flight Risk Assessment: The court considered the accused’s foreign nationality and the high likelihood of evasion if released on bail.

Precedent Analysis:

The court referred to State of Punjab v. Balbir Singh and State of H.P. v. Pawan Kumar to interpret the applicability of Section 50 of the NDPS Act and held that it only applies to a search of the person, not the baggage. It further relied on State of Kerala vs. Rajesh to assert that the threshold for bail under Section 37 is stringent, requiring substantial grounds for belief that the accused is not guilty.

Court’s Reasoning:

The court reasoned that even though minor discrepancies existed in the weight of the contraband, the recovery of a substantial quantity of heroin (9.950 kg) meant that the rigors of Section 37 applied, making bail difficult to grant unless the accused could show that he was not guilty. The accused failed to demonstrate that the alleged procedural lapses caused a miscarriage of justice.

Conclusion:

The bail application was dismissed, and the trial court was directed to expedite the trial, considering the advanced age of the accused.

Implications:

This decision underscores the stringent requirements for bail under the NDPS Act, especially in cases involving commercial quantities of narcotics. It reaffirms that procedural lapses must be weighed against the totality of evidence, and minor discrepancies do not automatically favor the accused. The judgment also highlights the heightened threshold for bail in cases involving serious drug offences, reinforcing the deterrent purpose of the NDPS Act.

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