Delhi High Court Grants Bail to Foreign National in NDPS Case: Highlights Prolonged Incarceration, Right to Liberty Under Article 21, and Procedural Safeguards Under Section 50 of the NDPS Act

Court’s Decision

The Delhi High Court granted regular bail to the petitioner accused of possessing a commercial quantity of amphetamine under the NDPS Act, 1985. While acknowledging the stringent provisions of Section 37 of the NDPS Act, the court emphasized the significance of personal liberty enshrined in Article 21 of the Constitution. Citing the petitioner’s prolonged incarceration of over two years and minimal progress in trial proceedings, the court held that continued detention would serve no purpose. Bail was granted upon furnishing a personal bond of ₹50,000 and subject to specific conditions, including restrictions on movement and ensuring no interference with evidence or witnesses.

Facts

• The petitioner, a foreign national from Côte d’Ivoire, was arrested on January 3, 2023, by the Anti-Narcotics Cell, Dwarka, based on secret information received through a police informant.
• The arrest was followed by the alleged recovery of 57 grams of amphetamine (a commercial quantity under the NDPS Act) from a white polythene bag in the petitioner’s possession.
• A charge sheet was filed on June 6, 2023, after receiving the Forensic Science Laboratory (FSL) report confirming the nature of the contraband.
• The petitioner denied the charges, asserting that the contraband was planted by the police and alleging procedural violations, particularly non-compliance with Section 50 of the NDPS Act.

Issues

1. Whether the procedural requirements under Section 50 of the NDPS Act, 1985, were followed, particularly regarding mandatory safeguards during search and seizure.
2. Whether the petitioner’s prolonged incarceration without significant trial progress violates his fundamental right to liberty under Article 21 of the Constitution.
3. Whether the petitioner satisfies the twin conditions under Section 37 of the NDPS Act for granting bail.

Petitioner’s Arguments

1. Procedural Violations:
   • The petitioner argued that the mandatory provisions of Section 50 of the NDPS Act were not complied with. No gazetted officer or magistrate was present during the search, and the mandatory notice under Section 50 was not served.
   • The petitioner alleged the recovery was fabricated, as no independent witnesses were present during the raid.
2. Lack of Evidence:
   • It was contended that there was no material evidence linking the petitioner to the alleged contraband. No call records, financial transactions, or other corroborative evidence were provided to establish the petitioner’s involvement.
3. Prolonged Incarceration:
   • The petitioner emphasized the delay in trial proceedings, with only two out of sixteen prosecution witnesses examined in over two years.
   • The petitioner had clean antecedents and a minimal likelihood of absconding due to his deep societal roots and cooperation with the investigation.
4. Violation of Fundamental Rights:
   • Citing judicial precedents, the petitioner argued that his fundamental right to liberty under Article 21 should outweigh statutory restrictions under Section 37 of the NDPS Act, especially given the significant delay in trial.

Respondent’s Arguments

1. Compliance with Procedures:
   • The prosecution asserted that all procedural requirements under Section 50 of the NDPS Act were followed. The contraband was recovered lawfully during the raid, and proper sampling was carried out in the presence of a magistrate.
2. Nature of the Offense:
   • The prosecution argued that the recovery of 57 grams of amphetamine, categorized as a commercial quantity, invoked the stringent twin conditions under Section 37 of the NDPS Act, making the grant of bail contingent upon satisfaction of these conditions.
3. Potential Risk:
   • The state opposed bail, citing the seriousness of the offense and its potential societal impact. They emphasized that the petitioner’s release might impede the investigation or influence witnesses, though this risk was minimal as most witnesses were police officials.

Analysis of the Law

1. Section 37 of the NDPS Act:
   • Section 37 imposes strict conditions for granting bail in cases involving commercial quantities of narcotics. The two key conditions are:
     • Reasonable grounds for believing the accused is not guilty of the offense.
     • Assurance that the accused will not commit any offense while on bail.
   • The court emphasized that “reasonable grounds” require substantial evidence beyond mere prima facie findings to satisfy these conditions.
2. Balancing Article 21:
   • The court acknowledged the right to liberty under Article 21 as fundamental, stating that statutory restrictions under special laws must not override constitutional guarantees.
   • Referring to judicial precedents, the court noted that prolonged pre-trial detention without substantive trial progress amounts to punishment without trial, which is impermissible under the Constitution.
3. Procedural Safeguards:
   • Non-compliance with Section 50 of the NDPS Act, as alleged by the petitioner, raises doubts about the legality of the recovery, warranting closer scrutiny of the prosecution’s case.

Precedent Analysis

1. Collector of Customs v. Ahmadalieva Nodira (2004):
   • The Supreme Court clarified that the twin conditions under Section 37 must be cumulatively satisfied before granting bail.
2. Union of India v. K.A. Najeeb (2021):
   • Courts retain discretion to grant bail in cases of prolonged incarceration, even under stringent laws like the NDPS Act.
3. Manish Sisodia v. CBI (2023):
   • The Supreme Court held that prolonged pre-trial detention should not result in incarceration becoming punishment without trial, emphasizing the sacrosanct nature of liberty under Article 21.

Court’s Reasoning

1. The petitioner had already been in custody for over two years, with the trial delayed due to the slow pace of examination of witnesses. This prolonged incarceration was viewed as a violation of Article 21.
2. The petitioner’s clean antecedents, societal ties, and cooperation with the investigation minimized the risk of absconding or tampering with evidence.
3. The case hinged primarily on police witnesses, reducing the likelihood of external influence by the petitioner.
4. With the charge sheet already filed and the evidence in possession of the investigation agency, continued detention was deemed unnecessary.

Conclusion

The court granted bail to the petitioner on furnishing a personal bond of ₹50,000 and adhering to conditions aimed at ensuring his availability for trial and preventing interference with the investigation. The court directed the registry to communicate the order to the trial court and the Foreigners Regional Registration Office (FRRO), Delhi.

Implications

This judgment reaffirms the judiciary’s role in upholding fundamental rights, even in cases involving stringent statutory provisions. It underscores the principle that the right to liberty cannot be compromised due to procedural delays, ensuring that incarceration does not become punishment prior to conviction.

Also Read – Supreme Court Acquits Appellant in Abduction Case Under Section 366-A IPC: Prosecution Fails to Prove Victim’s Minority and Coercion Beyond Reasonable Doubt, Emphasizes Need for Reliable Evidence in Age Determination