Court’s Decision
The Delhi High Court dismissed bail applications filed under Section 439 CrPC by two accused, who were charged under Sections 8, 21, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court held that recovery of commercial quantity of heroin (750 grams) stood established, the conspiracy was corroborated through voluntary statements, digital evidence, financial transactions, and call records. Stressing that “ignorance of the nature or contents of the contraband cannot be taken as a defence”, the Court ruled that the petitioners failed to satisfy the twin conditions of Section 37 NDPS Act and thus were not entitled to bail.
Facts
Acting on secret information, the Narcotics Control Bureau (NCB) intercepted a parcel at DHL Express, Rama Road, New Delhi, on 20.05.2022. The airway bill showed the consignor as a South African resident and the consignee as one of the petitioners. The parcel contained two packets with off-white powder, which on testing was found to be heroin weighing 750 grams.
The following day, NCB searched the residence of one petitioner, who admitted knowledge of the parcel and disclosed it was sent from South Africa by one “Martin Gary.” He stated he regularly handed over parcels to a Nigerian national for money and that the consignment was to be delivered at Sunil Dairy, Tilak Nagar, New Delhi.
At the location, another petitioner was apprehended while receiving the parcel. Cash of ₹27,500 was recovered, which he admitted was consideration for delivery. He also disclosed that he had earlier collected 7–8 parcels on instructions of his South African associate “Uche.” Both accused were arrested on 22.05.2022. Their phones revealed chats with “Frank Anka” and others, corroborating drug trafficking links.
Special Judge, NDPS, had rejected their bail earlier, noting commercial quantity recovery and substantive material linking them to the conspiracy. Hence, they approached the High Court.
Issues
- Whether delay in sampling and discrepancies in colour of contraband vitiated the prosecution’s case at the bail stage.
- Whether absence of recovery from one accused or nominal monetary transactions could dilute Section 37 NDPS Act rigours.
- Whether prolonged custody of over three years entitled the petitioners to bail despite commercial quantity recovery.
Petitioner’s Arguments
The petitioners argued that no contraband was recovered from one of them and his arrest was solely based on the other’s disclosure, which was inadmissible after Tofan Singh v. State of Tamil Nadu (2021). They claimed to be mere transporters, not consignors or consignees, and highlighted a minor monetary transfer of ₹7,400, insufficient to prove drug trafficking.
Counsel pointed to a 78-day delay in proceedings under Section 52A NDPS Act—contraband seized on 20.05.2022, but samples drawn only on 06.08.2022. Reliance was placed on Rishi Dev v. State (2008), Mohan Lal v. Union of India (2016), and Sarvotham Guhan v. NCB (2023), where delays in sampling were held fatal.
They further highlighted discrepancies: seizure memo described substance as “off-white” while FSL described it as “brownish coarse powder with lumps.” Citing James Eazy Franky v. DRI (2012), they argued such inconsistency indicated tampering.
Lastly, prolonged incarceration since May 2022 without trial conclusion violated Article 21, as held in Rabi Prakash v. State of Odisha (2023) and Man Mandal v. State of West Bengal (2023).
Respondent’s Arguments
The NCB opposed bail, arguing the case was not based solely on voluntary statements but corroborated by independent recovery, public witnesses, call records, WhatsApp chats, and financial transactions. The contraband was sampled under magistrate’s supervision, seals were intact, and forensic results confirmed heroin.
The respondent stressed that Section 37 NDPS Act applied squarely, as the recovery was of commercial quantity. The accused were active members of an organized drug syndicate, one being a foreign national without valid documentation, posing high risk of absconding.
Analysis of the Law
The Court referred to the Supreme Court’s ruling in NCB v. Kashif (2024), which clarified that delays under Section 52A NDPS Act amount to procedural irregularities, not illegality. Here, samples were drawn before a Magistrate and submitted to the CRCL within 72 hours, rendering the “delay” argument meritless.
On colour discrepancy, the Court noted “off-white” was a generic descriptor, and forensic experts’ precise classification could not be doubted at the bail stage. Such minor variation could not undermine prosecution.
Regarding prolonged custody, the Court balanced Article 21 concerns with statutory bar under Section 37 NDPS. It held that liberty cannot override public interest where commercial quantity recovery and prima facie conspiracy evidence exist.
Precedent Analysis
- Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 – Held that confessions under Section 67 NDPS are inadmissible; applied here but Court noted corroborating evidence existed beyond confessions.
- NCB v. Kashif (2024 SCC OnLine SC 3848) – Delay in sampling under Section 52A is an irregularity, not illegality. Relied on to reject the petitioners’ delay argument.
- Rabi Prakash v. State of Odisha (2023 SCC OnLine SC 1109) – Recognized prolonged custody as a ground for bail, but distinguished here due to commercial quantity and conspiracy links.
- James Eazy Franky v. DRI (2012 SCC OnLine Del 3006) – On sample discrepancies; Court distinguished, holding minor shade variation not fatal.
Court’s Reasoning
The Court observed that 750 grams of heroin was undeniably recovered. The petitioners were linked through multiple independent strands—seizure of parcel, voluntary statements, call detail records, WhatsApp chats, financial transfers, and public witnesses. These cumulatively established prima facie complicity in a trafficking conspiracy.
The Court ruled that the statutory twin conditions of Section 37 NDPS Act were not met. It could not conclude that the petitioners were not guilty or that they would not reoffend if released. The foreign national’s undocumented status increased flight risk.
The Court emphasized that at bail stage, merits are not adjudicated but prima facie material suffices. Here, strong material existed.
Conclusion
The Delhi High Court dismissed both bail applications. It held that commercial quantity recovery, conspiracy evidence, and foreign national status created overwhelming grounds to deny bail. The Court stressed that discrepancies and delays raised by the defence were issues for trial, not bail. Observations were confined solely to the bail stage.
Implications
This ruling reiterates the rigorous application of Section 37 NDPS Act for commercial quantity cases. Courts will not lightly release accused when strong prima facie evidence indicates organized drug syndicates. It clarifies that procedural lapses like sampling delays are not grounds for bail and that ignorance of contraband cannot shield an accused. The case also highlights stricter scrutiny of foreign nationals in narcotics cases due to absconding risks.
FAQs
Q1: Does delay in sampling under Section 52A NDPS guarantee bail?
No. As held in NCB v. Kashif (2024), delay is only an irregularity, not illegality, and cannot nullify the prosecution at bail stage.
Q2: Can minor discrepancies in the description of contraband colour help an accused?
No. Generic terms like “off-white” versus “brownish powder” do not undermine forensic results confirming heroin presence.
Q3: What are the twin conditions under Section 37 NDPS Act for bail?
The Court must be satisfied that (i) the accused is not guilty and (ii) will not commit an offence while on bail. These were not met here.