Delhi High Court Denies Bail to Afghan National in 3.60 kg Heroin Smuggling Case: Failure to Meet Stringent Section 37 NDPS Act Conditions and Risk of Absconding Highlighted

Court’s Decision:

The Delhi High Court dismissed the bail application of an Afghan national accused of smuggling 3.60 kg of heroin at the IGI Airport, New Delhi. The court held that the twin conditions under Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) were not met and found no merit in the arguments raised by the petitioner regarding procedural lapses. The trial was also at a critical stage with prosecution witnesses being examined, making it inappropriate to grant bail.

Facts:

• The petitioner was intercepted on August 8, 2021, at IGI Airport, New Delhi, arriving from Dubai with a silver-colored trolley bag.
• Upon inspection, the bag contained black-colored shampoo and hair color bottles filled with a thick liquid that had an unusual smell.
• A narcotic detection kit test confirmed the liquid as heroin weighing 3.60 kg, classified as a commercial quantity under the NDPS Act.
• A voluntary statement under Section 67 of the NDPS Act was made by the petitioner, admitting possession of the contraband.
• The petitioner has been in judicial custody for over three years, with only three out of eighteen prosecution witnesses examined so far.

Issues:

1. Whether the petitioner satisfied the twin conditions under Section 37 of the NDPS Act for bail.
2. Whether procedural lapses during the investigation, including non-compliance with Sections 50 and 52A of the NDPS Act, impacted the validity of the evidence.
3. Whether the petitioner’s prolonged custody justified bail in the absence of progress in the trial.

Petitioner’s Arguments:

1. Non-compliance with Sections 50 and 52A of the NDPS Act:
   • The petitioner argued that mandatory procedures, such as informing him of his right to be searched before a magistrate or gazetted officer (Section 50), were not properly followed.
   • The petitioner claimed irregularities in the handling of seized contraband under Section 52A.
2. Lack of corroborative evidence:
   • No independent witnesses were cited by the prosecution.
   • CCTV footage of the recovery proceedings was not presented.
3. Prolonged judicial custody:
   • The petitioner has been in custody for over three years, and only three out of eighteen witnesses have been examined, leading to an unreasonable delay in the trial.

Respondent’s Arguments:

1. Commercial Quantity Recovery:
   • The recovery of 3.60 kg of heroin is a commercial quantity, invoking the stringent conditions under Section 37 of the NDPS Act, which requires the court to ensure that there are reasonable grounds to believe the accused is not guilty and will not commit any offense while on bail.
2. Procedural Compliance:
   • The Customs officials followed all mandatory procedures under the NDPS Act during search and seizure.
   • Photographs of the recovery were taken, and two independent witnesses, along with a language interpreter, were present during the recovery proceedings.
3. Flight Risk:
   • The petitioner is a foreign national, and granting bail could lead to him absconding, thereby frustrating the ongoing trial.

Analysis of the Law:

1. Section 37 of the NDPS Act:
   • Section 37 imposes stringent conditions for granting bail in cases involving commercial quantities of narcotics. The accused must prove:
     • Reasonable grounds for believing he is not guilty of the offense.
     • Assurance that he will not commit another offense while on bail.
   • These conditions are in addition to the general bail provisions under the Criminal Procedure Code (CrPC).
2. Procedural Irregularities:
   • The court relied on Narcotics Control Bureau v. Kashif (2024) to hold that procedural lapses during search and seizure do not invalidate the evidence unless they cause serious prejudice to the accused. The NDPS Act must be interpreted strictly to avoid frustrating its objective of combating drug trafficking.

Precedent Analysis:

1. Narcotics Control Bureau v. Mohit Aggarwal (2022):
   • “Reasonable grounds” mean credible, persuasive, and cogent evidence that convinces the court of the accused’s innocence and their unlikelihood of reoffending.
2. Narcotics Control Bureau v. Kashif (2024):
   • Irregularities in procedural compliance under Sections 50 and 52A do not automatically vitiate the evidence unless substantial prejudice is shown.
   • Section 37 mandates that courts record findings explicitly showing satisfaction of the twin conditions before granting bail.

Court’s Reasoning:

1. Merit of Procedural Lapse Claims:
   • The court dismissed the argument regarding non-compliance with Sections 50 and 52A, stating that procedural lapses do not nullify evidence unless they result in serious prejudice to the accused.
2. Commercial Quantity and Risk of Absconding:
   • The recovery of 3.60 kg of heroin, a commercial quantity, invoked the stringent conditions of Section 37.
   • As a foreign national, the petitioner posed a high risk of absconding if granted bail.
3. Trial Stage:
   • The trial was at a critical stage with prosecution witnesses being recorded, making bail inappropriate at this juncture.

Conclusion:

The court concluded that:

• The petitioner failed to satisfy the twin conditions under Section 37 of the NDPS Act.
• Procedural lapses alleged by the petitioner did not render the evidence inadmissible.
• Granting bail could jeopardize the trial process, especially given the petitioner’s status as a foreign national.

The bail application was dismissed, and the court clarified that its observations would not impact the merits of the trial.

Implications:

This judgment reinforces the strict bail conditions for cases involving commercial quantities of narcotics under the NDPS Act. It emphasizes the need for courts to prioritize the public interest and societal impact over procedural technicalities in drug trafficking cases. The decision also highlights the challenges faced by foreign nationals in obtaining bail when they pose a flight risk.

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