Court’s Decision
The Delhi High Court granted regular bail to the applicant under Sections 439 and 482 of CrPC in a case under Sections 21(c)/23(c) read with Section 8 of the NDPS Act, observing that his detention from 21.05.2023 to 26.05.2023 was illegal as he was not produced before a Magistrate within 24 hours. Justice Amit Sharma held:
“The applicant was in the continuous custody of the respondent from 21.05.2023 till 26.05.2023 without any authorisation… such custody without any authority and without producing him before the concerned Magistrate… is completely illegal.”
Citing Subhash Sharma, the Court concluded that the accused’s fundamental rights under Articles 21 and 22 of the Constitution had been violated and ordered release on bail irrespective of the restrictions under Section 37 of the NDPS Act.
Facts
The applicant, a foreign national, arrived at IGI Airport on 21.05.2023 and was intercepted based on profiling. After consenting to an x-ray under Section 103 of the Customs Act, he admitted to swallowing narcotic capsules. He was taken to Safdarjung Hospital, where over the next few days, 75 capsules containing narcotic substances were allegedly recovered. The applicant was not formally arrested or produced before a Magistrate until 26.05.2023. Eventually, FSL testing confirmed presence of 954 grams of Cocaine Hydrochloride. A complaint was filed, and charges were framed by the Special Court on 31.01.2024. Six prosecution witnesses had been examined when the present bail application was heard.
Issues
- Whether the applicant’s detention from 21.05.2023 to 26.05.2023 without being produced before a Magistrate was illegal?
- Whether the alleged non-compliance of Sections 42, 50, and 52A of the NDPS Act vitiated the applicant’s arrest and seizure?
- Whether the rigours of Section 37 NDPS Act could be overridden due to such procedural violations?
Petitioner’s Arguments
The petitioner contended that the entire process of detention and seizure was fraught with serious constitutional and statutory violations. It was argued that the applicant was apprehended on 21.05.2023 but was shown to be formally arrested only on 26.05.2023, during which period he was never produced before any Magistrate or Special Court, nor was his family or embassy informed. The delay, it was claimed, violated Article 22(2) of the Constitution. The petitioner highlighted non-compliance with Section 42 of the NDPS Act, pointing out that the Customs allegedly had specific prior intelligence but failed to record it in writing. Additionally, the petitioner challenged the legitimacy of the recovery on the grounds that no notice was served under Section 50 prior to each instance of recovery and that panchnamas alone could not substitute statutory safeguards. The petitioner also pointed to delay in sending the seized samples to the FSL and failure to record the exact weight of the capsules during initial recovery, thereby breaching Section 52A. The continued detention and coercive conduct by the respondent while the applicant was under medication was also cited as unjustified and unlawful, leading to the claim that his arrest stood vitiated and he was entitled to bail.
Respondent’s Arguments
The Customs department, opposing the bail plea, submitted that the applicant was intercepted purely on profiling and suspicion, and not based on prior intelligence, thus making Section 42 inapplicable. It was contended that the applicant voluntarily admitted to carrying narcotics and consented in writing to undergo x-ray and medical procedures under Sections 102, 103 of the Customs Act and Section 50 of the NDPS Act. The department maintained that the applicant was never under illegal detention; he was allowed to keep his mobile phone and was housed in a hospital room with other patients. His statement under Section 67 of the NDPS Act was voluntary, and the seizure was properly documented through panchnamas. The respondent further argued that the quantity recovered (954 grams of Cocaine Hydrochloride) was of a commercial nature, attracting the stringent bar under Section 37 of the NDPS Act. They asserted that the investigation was complete, the complaint had been filed, charges were framed, and the trial was underway with six witnesses already examined. On this basis, it was argued that the accused should not be granted bail at this stage.
Analysis of the Law
The Court examined the procedural safeguards under Sections 42, 52, and 57 of the NDPS Act and Article 22(2) of the Constitution. It relied heavily on the Supreme Court’s rulings in:
- Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559 — to define “custody” as not merely formal arrest but control by an authority.
- Directorate of Enforcement v. Subhash Sharma, 2025 INSC 141 — held that failure to produce the accused before a Magistrate within 24 hours vitiates arrest.
- State of Punjab v. Balbir Singh (1994) 3 SCC 299 — confirmed CrPC provisions apply to NDPS arrests and searches.
Precedent Analysis
- Niranjan Singh v. Prabhakar Rajaram Kharote — clarified that “custody” includes any form of control by an investigating agency even without formal arrest.
- Directorate of Enforcement v. Subhash Sharma — ruled that failure to produce the accused within 24 hours after detention amounts to a breach of Articles 21 and 22.
- Kaushik Rameshchandra Thakkar v. State of Maharashtra, 2025 SCC OnLine Bom 1493 — followed Subhash Sharma, holding that police custody without Magistrate’s authorization is illegal.
- Mrs. Iqbal Kaur Kwatra v. DGP, Rajasthan, 1996 SCC OnLine AP 206 — reiterated that “custody” includes restriction on movement and does not require formal arrest.
- State of Punjab v. Balbir Singh — held that non-compliance with statutory procedures like Section 42 and 50 of NDPS Act invalidates arrest and seizure.
Court’s Reasoning
The Court held that:
- The applicant was under continuous custody from 21.05.2023 to 26.05.2023, proven by repeated “handing over” memos.
- The justification that he was under medical care did not excuse failure to produce him before a Magistrate.
- Notices under Sections 42 and 50 were not properly complied with.
- The report under Section 57 was filed only on 26.05.2023 — long after initial seizure of contraband.
- Non-compliance with constitutional mandates rendered the arrest illegal and vitiated the seizure.
Conclusion
The Court held that:
“The respondent without producing the applicant within 24 hours… continued to keep him in Safdarjung Hospital… In view of the above, this Court holds that the applicant was kept in illegal custody… His arrest on 26.05.2023 stands vitiated.”
The applicant was granted bail with conditions, including furnishing a personal bond of ₹25,000 and a surety, non-tampering of evidence, and restriction on leaving India without court permission.
Implications
This judgment reiterates that compliance with constitutional and statutory safeguards is not optional, even in NDPS cases. Illegal detention—even without formal arrest—vitiates the process and entitles the accused to bail, notwithstanding Section 37 of the NDPS Act. The ruling strengthens procedural due process and reinforces accountability on law enforcement during preliminary detention and recovery procedures.
