Ndulu Lukulungu Heritier vs Customs
- Court
- Delhi High Court
$~P-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on 14.10.2026
Pronounced on 16.10.2026
Uploaded on: 16.10.2026.
# CNR No. DLHC010033792026
+ BAIL APPLN. 459/2026 & CRL.M.A. 3493/2026
NDULU LUKULUNGU HERITIER .....Petitioner
Through: Mr. Aniruddha Singh Rajavat, Mr.
Maneesh Bhardwaj, Advocates.
versus
CUSTOMS .....Respondent
Through: Mr. Shubham Tyagi, SSC with Ms.
Navruti Ojha, Advocates for the
Respondent in Item No.2.
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
J U D G M E N T
1. By way of the present bail application under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner seeks regular
bail in connection with File/C. No. VIII(AP)(10)P&I/3453-
D/Arrival/2022 registered under Sections 8/21/23/28 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”], at Police
Station Customs, IGI Airport, Delhi.
2. I have heard Mr. Aniruddha Singh Rajavat, learned counsel for the
petitioner, and Mr. Shubham Tyagi, learned Standing Counsel for the
respondent.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 1 of 28
3. This petition was heard alongwith BAIL APPLN. 4650/2025 and
BAIL APPLN. 516/2026, which arise in similar circumstances. However,
separate judgments are being delivered in each of the three petitions.
4. The prosecution has placed on record a reply dated 23.03.2026 and
handed over written submissions dated 02.09.2026, which is taken on
record.
ROSECUTION ASE
A. P C
5. The prosecution case, as emerging from the material on record, is
as follows:
a. The petitioner, who is a Congolese (Democratic Republic)
national, arrived at Terminal-3, IGI Airport, New Delhi from
Ethiopia on 25.04.2022.
b. On the basis of suspicion, the petitioner was intercepted by the
Customs authorities while passing through the Green Channel. His
baggage was scanned, and he was also asked to pass through the
Door Frame Metal Detector. However, nothing suspicious was
detected at that stage.
c. The petitioner was thereafter taken to the Customs Preventive
Room at International Arrival Hall of T-3, IGI Airport, for further
verification. Notices under Section 102 of the Customs Act, 1962
[“the Customs Act”], and Section 50 of the NDPS Act were served
upon him.
d. Pursuant to the aforesaid notices, the petitioner‟s personal and
baggage search was conducted before a Gazetted Customs Officer
and two independent witnesses. However, no incriminating article
was recovered during the said search.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 2 of 28
e. As the conduct of the petitioner remained suspicious, further
enquiry was conducted, and the petitioner voluntarily stated that he
had ingested some pellets/capsules containing narcotics.
Consequently, he was served with a notice under Section 103 of
the Customs Act. He also agreed to undergo procedure for removal
of the said pellets/capsules. The petitioner was accordingly taken to
RML Hospital on 25.04.2022 itself.
f. The petitioner was admitted on 25.04.2022. During his stay, i.e.
between 25.04.2022. to 07.05.2022, the petitioner excreted the
capsules. The capsules were recovered under separate panchnamas,
the details of which are enumerated below:
P ANCHNAMA D ATE AND
TIMING OF
ANCHNAMA
P
D ETENTI
N O . OF
C APSULES
RECOVERED
P ANCHNA
P ANCH
W ITNESSES
ON
ECEIPT
R
MA
FFICER
O
[“DR”]
O
N .
Panchnama 2 at
RML Hospital
25.04.2022 at
08:10 PM
DR No.
68793
29 Sachin
Bhati,
ACO
Dharmender
and Amit
Rohilla
Panchnama 3 at
RML Hospital
26.04.2022 at
06:00 AM
DR No.
68794
12 Mukesh
Bharadwaj,
ACS
Mahipal
Singh and
Rakesh
Panchnama 4 at
RML Hospital
26.04.2022 at
07:00 PM
DR No.
68795
19 Sujeet
Kumar,
ACO
Ritu and
Dharmender
Panchnama 5 at
RML Hospital
27.04.2022 at
01:30 AM
DR No.
68796
10 Sunil
Pratap
Suman,
ACS
Mahipal
Singh and
Puran
Chand
Panchnama 6 at
RML Hospital
01.05.2022 at
07:30 PM
DR No.
68797
01 Ashish
Semwal,
ACO
Dharmender
and Ritu
g. At the time of each recovery, the capsules were kept in a plastic
container and sealed with Customs pliers seal having „Customs PD
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 3 of 28
IGI‟ marking on one side and „Ashoka Stambh‟ on the other.
During the intervening period, the custody of the petitioner, and the
recovered substance, remained with the respondent authorities, as
evidenced by the handing-over memos dated 25.04.2022 to
07.05.2022. The custody of aforesaid was handed over from one
officer to another on 21 occasions during the said period.
h. On 07.05.2022, the petitioner was discharged from RML Hospital
and taken to IGI Airport. On 08.05.2022, independent panch
witnesses [namely Mohd. Aziz Ansari and Suman] were called and
shown the five sealed containers, who found the seal and
signatures on the DR slip affixed to the containers intact.
i. Thereafter, all 71 capsules, which were kept in five different plastic
containers, were opened in the presence of independent panch
witnesses and the petitioner. Each of the 71 capsules was cut open
with a blade, and found to contain white powdery substance. A
small quantity was taken from each of the 71 capsules, and tested
separately using the field drug testing kit, and found to be positive
for cocaine .
j. Thereafter, the contents of the capsules in each of the five sets were
mixed together and kept in five different transparent polythene
pouches. The packing material of the capsules was preserved
separately. The net weight of the substance recovered was
approximately 1198 grams.
k. Thereafter, the five pouches were kept in a plastic container
stitched in cloth and marked „X‟. The cloth marked „X‟ was sealed
with a Customs preventive seal bearing “IGI AIRPORT
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 4 of 28
CUSTOMS NEW DELHI T-3 AIRPORT OPEN D”, after
completion of procedural formalities. This was seized vide DR No.
68798 and was deposited in the malkhana .
l. Panchnama-7 dated 08.05.2022 was prepared in respect of the
aforesaid proceedings.
m. The petitioner was ultimately arrested on 08.05.2022. An
intimation of his arrest was communicated to the Ministry of
External Affairs, New Delhi and the Embassy of Democratic
Republic of Congo.
n. Subsequently, the petitioner tendered his voluntary statement on
08.05.2022 under Section 67 of the NDPS Act, where he inter alia
admitted the possession, recovery and attempt to import narcotic
substances.
o. On 31.05.2022, an application under Section 52A of the NDPS Act
for sampling and disposal of the case property, was placed before
the Magistrate‟s Court. Samples were drawn and the panchnama
dated 08.05.2022, relating to recovery from the petitioner, was
verified to the effect that the particulars, sealing, weight, and color
of the case property was correct.
p. The samples were thereafter sent to CRCL and vide report dated
27.09.2022, tested positive for cocaine .
q. On 23.03.2023, charges were framed against the petitioner under
Sections 21(c)/23(c) of the NDPS Act.
6. Nominal Roll furnished by the jail authorities shows that the
petitioner was in custody for 3 years, 10 months, and 6 days, as of
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 5 of 28
13.03.2026. He has thus now been in custody for over 4 years and 5
months.
B. R ELEVANT P ROVISIONS
7. The statutory provisions in the NDPS Act referred to by learned
counsel for the parties in the course of their arguments are set out below:
“ 37. Offences to be cognizable and non-bailable.—
(1)Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)—
(a)every offence punishable under this Act shall be cognizable;
(b)no person accused of an offence punishable for offences
under section 19 or section 24 or section 27A and also for offences
involving commercial quantity shall be released on bail or on his own
bond unless—
(i)the Public Prosecutor has been given an opportunity
to oppose the application for such release, and
(ii)where the Public Prosecutor opposes the
application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and
that he is not likely to commit any offence while on bail.
(2)The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time
being in force, on granting of bail.
XXX XXX XXX
52. Disposal of persons arrested and articles seized.—
XXX XXX XXX
(2) Every person arrested and article seized under warrant issued
under sub-section (1) of section 41 shall be forwarded without
unnecessary delay to the Magistrate by whom the warrant was issued.
XXX XXX XXX
52-A. Disposal of seized narcotic drugs and psychotropic
substances. —[(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant consideration, in respect of
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 6 of 28
any narcotic drugs, psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of psychotropic
substances, class of controlled substances or conveyances, which
shall, as soon as may be after their seizure, be disposed of by such
officer and in such manner as that Government may, from time to
time, determine after following the procedure hereinafter specified.]
(2) Where any [narcotic drugs, psychotropic substances, controlled
substances or conveyances] has been seized and forwarded to the
officer-in-charge of the nearest police station or to the officer
empowered under Section 53, the officer referred to in sub-section (1)
shall prepare an inventory of such [narcotic drugs, psychotropic
substances, controlled substances or conveyances] containing such
details relating to their description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars of the [narcotic
drugs, psychotropic substances, controlled substances or conveyances]
or the packing in which they are packed, country of origin and other
particulars as the officer referred to in sub-section (1) may consider
relevant to the identity of the [narcotic drugs, psychotropic substances,
controlled substances or conveyances] in any proceedings under this
Act and make an application, to any Magistrate for the purpose of —
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such
drugs, substances or conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and certifying the
correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974),
every court trying an offence under this Act, shall treat the inventory,
the photographs of [narcotic drugs, psychotropic substances,
controlled substances or conveyances] and any list of samples drawn
under sub-section (2) and certified by the Magistrate, as primary
1
evidence in respect of such offence.]”
1
Emphasis supplied.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 7 of 28
8. The relevant rules of Standing Order No. 1/89 dated 13.06.1989
[hereinafter, “the Standing Order”], relied upon by learned counsel for
the parties, are set out below for ease of reference:
“ Sampling Classification, Etc. of drugs
2.1 All drugs shall be properly classified, carefully weighed and
sampled on the spot of seizure.
Drawal of Samples
2.2 All the packages/containers shall be serially numbered and kept in
lots for sampling. Samples from the narcotic drugs and psychotropic
substances seized, shall be drawn on the spot of recovery, in duplicate,
in the presence of search witnesses (Panchas) and the person from
whose possession the drug is recovered, and a mention to this effect
should invariably be made in the panchnama drawn on the spot .
XXX XXX XXX
Method of Drawal
2.4 In the case of seizure of a single package/container, one sample in
duplicate shall be drawn. Normally, it is advisable to draw one sample
(in duplicate) from each package/container in case of seizure of
more than one package/container.
2.5 However, when the packages/containers seized together are of
identical size and weight, bearing identical markings and the
contents of each package given identical results on colour test by the
drug identification kit, conclusively indicating that the
packages/containers are identical in all respects except in the case of
ganja and hashish (charas), where it may be bunched in lots of 40.
Such packages/containers, one sample (in duplicate) may be drawn.
XXX XXX XXX
Storage of samples – procedure
2.9 The sample in duplicate should be kept in heat sealed plastic bags
as it is convenient and safe. The plastic bag container should be kept
in a paper envelope which may be sealed properly. Such sealed
envelope may be marked as original and duplicate. Both the envelopes
should also bear the S.No. of the package(s)/container(s) from which
the sample has been drawn. The duplicate envelope containing the
sample will also have a reference of the test memo. The seals should be
legible. This envelope along with test memo should be kept in another
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 8 of 28
envelope which should also be sealed and marked “secret-drug
sample/Test memo”, to be sent to the chemical laboratory concerned.
XXX XXX XXX
Maintenance of godowns and procedure for deposit of Drugs
3.3 Such godowns, as a matter of rule, shall be placed under the
overall supervision and charge of a Gazetted Officer of the respective
enforcement agency, who shall exercise utmost care, circumspection
and personal supervision as far as possible. Each seizing officer shall
deposit the drugs fully packed and sealed in the godowns within 48
hours of such seizure, with a forwarding memo indicating NDPE
Crime No. as per Crime and Prosecution (C & P Register) under the
new law, name of the accused, reference of test memo, description of
2
the drugs, total number of packages/containers, etc.
”
UBMISSIONS BY EARNED OUNSEL FOR ARTIES
C. S L C P
9. In the bail application, the petitioner has taken the point that his
arrest, in fact, took place on 25.04.2022 when he was apprehended at IGI
Airport and not on 08.05.2022, when he was formally arrested. It has
been argued, relying upon judgments of this Court in Habiob Bedru
3 4
Omer v. Customs , Kitoko Ngiembo Alain v. Customs , and Maria
5
Nuemia Albertina v. Customs , that his arrest was illegal as he was not
produced before a Magistrate within 24 hours, but only on 08.05.2022.
However, in view of apparently conflicting authorities of this Court on
6
this point, in Christina Katushabe Ayebale v. Customs , Lydia Kabukazi
7 8
Aloyo v. Customs , and Joshua Kuteesa v. Customs , Mr. Rajavat, in the
course of hearing, gave up this point, rather than seeking reference to a
larger Bench for the purpose of resolving the conflict.
2
Emphasis supplied.
3
2025 SCC OnLine Del 4263.
4
BAIL APPLN. 3428/2025, decided on 16.02.2026.
5
BAIL APPLN. 4689/2025, decided on 17.03.2026.
6
BAIL APPLN. 4890/2025, decided on 17.12.2025.
7
BAIL APPLN. 1429/2025, decided on 24.12.2025.
8
BAIL APPLN. 1757/2025, decided on 06.04.2026.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 9 of 28
10. The principal submissions advanced by Mr. Rajavat are that the
sanctity of the seizure stands vitiated on account of non-compliance with
the procedure prescribed under the NDPS Act and the Standing Order,
and on account of the petitioner‟s pre-trail incarceration, without
likelihood of expeditious conclusion of proceedings.
11. In support of the first argument, Mr. Rajavat submits as follows:
a. The present prosecution is founded upon five separate recoveries
made between 25.04.2022 and 01.05.2022, in respect of which
separate panchnamas were drawn. Mr. Rajavat submits that the
said panchnamas neither record the classification or weight of the
seized contraband, nor reflect any sampling having been carried
out, in violation of paragraph 2.1 of the Standing Order. To this
effect, he places reliance on a judgment of the Rajasthan High
9
Court in Kuka Ram v. State of Rajasthan.
b. He further draws my attention to the formal seizure memo dated
08.05.2022 and the five panchnamas recorded at the time of
recovery, to submit that the formal seizure was not carried out in
the presence of the panch witnesses who had witnessed the
respective recoveries, contrary to the requirement under paragraph
2.2 of the Standing Order. It is further submitted that, in an attempt
to cure this defect, the petitioner himself was made to identify the
recovered contraband at the time of sampling on 08.05.2022,
which, according to Mr. Rajavat, is impermissible and violative of
the constitutional safeguards available to the petitioner.
9
2024 SCC OnLine Raj 3705 [hereinafter, “ Kuka Ram ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 10 of 28
c. In the present case, following the field testing on 08.05.2022,
which indicated the presence of cocaine , the contents of the
capsules recovered in each of the five separate recoveries, were
mixed together and thereafter placed in five separate pouches.
Samples were ultimately drawn only on 31.05.2022, pursuant to
the order passed by the Magistrate‟s Court on the application under
Section 52A of the NDPS Act. Mr. Rajavat submits that this
procedure is contrary to paragraph 2.4 of the Standing Order,
which contemplates the drawing of representative samples
separately from each seized package/container. According to him,
the mixing of the contents of the five separate recoveries prior to
the drawing of representative samples was impermissible and
vitiated the sampling procedure. He places reliance on judgments
10
of this Court in Amani Fidel Chris v. Narcotics Control Bureau ,
11 12
Amina v. State NCT of Delhi , and Betty Rame v. NCB .
d. Despite the recoveries having been effected between 25.04.2022
and 01.05.2022, the seized contraband was deposited in the
godown only on 08.05.2022. The seized contraband admittedly
remained in the custody of Customs officials during the
intervening period. Mr. Rajavat submits that there was, therefore, a
delay of approximately seven to thirteen days in depositing the
seized contraband in the godown, contrary to paragraph 3.3 of the
Standing Order, which requires the seized drugs to be deposited in
the godown within 48 hours of seizure.
10
2020 SCC OnLine Del 2080 [hereinafter, “ Amani Fidel Chris ”].
11
2023 SCC OnLine Del 3491 [hereinafter, “ Amina ”].
12
CRL.M.(BAIL) 1324/2022 IN CRL.A. 338/2021, decided on 30.05.2023[hereinafter, “ Betty Rame ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 11 of 28
e. Mr. Rajavat further points out that, although field testing of the
seized contraband was conducted on 08.05.2022, formal sampling
was carried out only on 31.05.2022 before the Magistrate‟s Court,
resulting in a delay of over three weeks. He submits that such delay
in complying with the procedure contemplated under Section 52A
of the NDPS Act creates a reasonable doubt in the prosecution
case, thereby entitling the petitioner to bail.
12. Lastly, Mr. Rajavat submits that the petitioner has been
incarcerated for a period of over 4 years and 5 months, while only 13 out
of 42 witnesses have been examined so far. The trial is, therefore, likely
to take considerable time to conclude, leading to an apprehension of
prolonged pre-trial incarceration, contrary to Article 21 of the
Constitution.
13. Mr. Tyagi, on the other hand, submits that the present case
involves recovery of 1198 grams of cocaine , which is far in excess of the
threshold for commercial quantity [100 grams]. He therefore submits that
the twin conditions for grant of bail under Section 37 of the NDPS Act
come into play, and the petitioner fails to satisfy these conditions, in the
facts of this case.
14. Mr. Tyagi submits that the contention with regard to violation of
the Standing Order, as urged by Mr. Rajavat, is also insufficient for grant
of bail in the present case. He submits, relying upon the judgments of the
13
Supreme Court in Mohd. Muslim v. State (NCT of Delhi) , Narcotics
14
Control Bureau v. Kashif , and Bharat Aambale v. State of
13
2023 SCC OnLine SC 352, [hereinafter, “ Mohd. Muslim ”].
14
(2024) 11 SCC 372, [hereinafter, “ Kashif ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 12 of 28
15
Chhattisgarh that the respondent is not required to demonstrate
scrupulous and meticulous compliance with the Standing Order, and that
it is for the accused to show substantial non-compliance and resultant
prejudice, in order to defeat the prosecution case. Mr. Tyagi urges the
Court to reserve these issues for trial upon evidence, rather than to
undertake a mini trial at the stage of an application for bail.
15. On the specifics of the present case, Mr. Tyagi submits that the
capsules containing the contraband, were sealed at the time of recovery
and each of the containers were affixed with a DR slip and a seal. The
seizure procedure was conducted by way of a single seizure after medical
assurance that all the ingested capsules have been recovered. He submits
that the DR slips and seals affixed at the time of recovery of the capsules
were found to be intact at the time of seizure, and that fresh seals were
affixed at the time of seizure, after which the contraband was sent to the
malkhana . At the time of sampling before the Magistrate, the seals placed
at the time of seizure were found to be intact. Mr. Tyagi, therefore
submits that the entire chain of custody remained unbroken, and there
was no opportunity for tampering or contamination of the contraband in
the interregnum. In such circumstances, he submits that there was
substantial compliance with the procedure required, so as to negate even
a prima facie case on the threshold of Section 37 of the NDPS Act.
16. Mr. Tyagi also disputed the petitioner‟s entitlement to bail on
account of prolonged incarceration. He drew my attention to a recent
16
judgment of the Supreme Court in State of Punjab v. Sukhwinder Singh ,
15
(2025) 8 SCC 452, [hereinafter, “ Bharat Aambale ”].
16
2026 SCC Online SC 671, [hereinafter, “ Sukhwinder Singh ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 13 of 28
which clearly lays down that the requirements of Section 37 of the NDPS
Act are not eclipsed by length of incarceration.
17. Mr. Rajavat, in rejoinder, disputes Mr. Tyagi‟s argument with
regard to an unbroken chain of custody on two grounds:
a. That the DR slip affixed on the container is merely a piece of
paper, without any authenticating or unique characteristics, so as to
render it impossible to tamper or replace.
b. That the seals affixed upon the containers at the time of recovery at
the hospital were not sent for forensic examination, contrary to the
requirement of paragraph 2.9 of the Standing Order.
18. Learned counsel on both sides also relied upon several other
authorities, to which I will refer to in the course of judgment.
D. A NALYSIS
19. At the very outset, it may be noted that the subject complaint
concerns recovery of commercial quantity of cocaine [more than 100
grams] and therefore attracts the twin restrictions on grant of bail, as laid
down in Section 37 of the NDPS Act.
20. Before examining the merits of the matter, so as to adjudicate the
satisfaction of these conditions, some judgments of the Supreme Court
dealing with prolonged incarceration, in cases under the NDPS Act, and
other similar statues, must be considered. Several statutory provisions
incorporate similar (although not always identical) restrictions on the
grant of bail, for example Section 43D(5) of the Unlawful Activities
(Prevention) Act, 1967 [“UAPA”], Section 21(4) of the Maharashtra
Control of Organised Crime Act, 1999, and Section 45 of the Prevention
of Money Laundering Act, 2002.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 14 of 28
21. Several decisions of the Supreme Court have emphasized the inter-
play between the statutory scheme and the constitutional right to pre-trial
life and liberty. Some of those decisions are noticed below:
a. In the context of UAPA, the Court in Union of India v. K.A.
17
Najeeb opined as follows:
“ 15. This Court has clarified in numerous judgments that the liberty
guaranteed by Part III of the Constitution would cover within its
protective ambit not only due procedure and fairness but also access to
justice and a speedy trial. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India [Supreme Court
Legal Aid Committee (Representing Undertrial Prisoners) v. Union of
India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39] , it was held that
undertrials cannot indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of his acts unless the same is
established before a neutral arbiter. However, owing to the practicalities
of real life where to secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large pending trial, the courts
are tasked with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial would not be
possible and the accused has suffered incarceration for a significant
period of time, the courts would ordinarily be obligated to enlarge them
on bail.
XXX XXX XXX
17. It is thus clear to us that the presence of statutory restrictions like
Section 43-D(5) of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a statute as well as
the powers exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings, the courts are
expected to appreciate the legislative policy against grant of bail but the
rigours of such provisions will melt down where there is no likelihood of
trial being completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial part of the
prescribed sentence . Such an approach would safeguard against the
possibility of provisions like Section 43-D(5) of the UAPA being used as
the sole metric for denial of bail or for wholesale breach of constitutional
18
right to speedy trial. ”
17
(2021) 3 SCC 713, [hereinafter, “ K.A. Najeeb ”].
18
Emphasis supplied.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 15 of 28
b. K.A. Najeeb was applied, in the context of the NDPS Act, inter alia
in Mohd. Muslim . The Court therein also stipulated that Section 37
NDPS Act requires a prima facie consideration, based upon
reasonable assessment of the material on record, and not a finding
beyond reasonable doubt at the stage of bail.
c. In several other orders also, the Supreme Court has granted bail to
accused in cases involving commercial quantities under the NDPS
Act, on the ground of period of custody. Some of the said orders
are tabulated in the following chart:
S R .
N O .
C ASE N O . C AUSE TITLE D ATE OF
P ERIOD OF
INCARCERATION
ORDER /
JUDGMENT
1. SLP (Crl.)
No.
8900/2022
Jitendra Jain v.
Narcotics
Control Bureau
and Anr.
16.12.2022 2 years
2. SLP (Crl.)
No.
6690/2022
Dheeraj Kumar
Shukla v. State of
U.P.
25.01.2023 2 and a half years
3. SLP (Crl.)
No.
4169/2023
Rabi Prakash v.
State of Odisha
13.07.2023 More than 3 and a
half years
4. SLP (Crl.)
No.
975/2023
Badsha SK. v. The
State of West
Bengal
13.09.2023 More than 2 years
5. SLP (Crl.)
No.
8656/2023
Man Mandal and
Anr. v. The State of
West Bengal
14.09.2023 Almost 2 years
6. SLP (Crl.)
No.
14347/2023
Rased Mia v. The
State of West
Bengal
24.01.2024 1 year and 6
months
7. SLP (Crl.)
No.
14415/2023
Suman Sk. @
Samirul Islam v.
The State of West
Bengal
01.03.2024 Not mentioned
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 16 of 28
R
S .
N O .
ASE O AUSE TITLE ATE OF
C N . C D
ERIOD OF
P
INCARCERATION
ORDER /
JUDGMENT
8. SLP (Crl.)
No.
14974/2025
Deepchand v. State
of Rajasthan
26.11.2025 More than 3 years
d. As against this line of authority, Mr. Tyagi drew my attention to
the following observations in Sukhwinder Singh :
“ 9. It is well settled that in matters involving recovery of contraband in
commercial quantity, the twin conditions under Section 37(1)(b)(ii) of the
NDPS Act are mandatory and entail no relaxation merely on the ground
that the accused has undergone prolonged incarceration during the
pendency of trial . The provision casts upon the court a duty to record,
before enlarging an accused on bail, its satisfaction on two cumulative
conditions, first, that there exist reasonable grounds for believing that the
accused is not guilty of the offence charged; and second, that he is not
likely to commit any offence while on bail. The recording of such
satisfaction is not a mere formality but a mandatory precondition, the
non-observance of which vitiates the grant of bail . This Court,
in Kashif [Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372 :
(2025) 3 SCC (Cri) 377] , has held in no uncertain terms that the
recording of satisfaction on the twin conditions under Section 37 is
mandatory and not merely directory, and that an order granting bail
without such recorded satisfaction stands vitiated and cannot be sustained.
The same view stands reiterated in Lalrintluanga Sailo [State of
Meghalaya v. Lalrintluanga Sailo, (2024) 15 SCC 36 : (2026) 1 SCC (Cri)
N-23] .
10. The impugned order [Sukhwinder Singh v. State of Punjab, 2026 SCC
OnLine P&H 6788] , on its own showing, does not record the satisfaction
mandated under Section 37(1)(b)(ii) of the NDPS Act . Far from
recording such satisfaction, the High Court has gone on to observe that
“the rigours of Section 37 of the NDPS Act can be diluted bearing in mind
the right to a speedy trial”. Such an approach is plainly contrary to the
settled law laid down by this Court and deserves to be set aside on this
ground alone.
11. The right to speedy trial, rooted in Article 21 of the Constitution, is
undoubtedly a precious constitutional right. That said, in matters
governed by a special enactment such as the NDPS Act, particularly
where the recovery is of commercial quantity, the said right under
Article 21 must be exercised within the framework of Section 37 and
cannot be pressed into service solely on the ground of delay to override
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 17 of 28
it. The constitutional right under Article 21 and the special provision of
law under Section 37 of the NDPS Act are to be read harmoniously and
not placed in opposition to each other . The High Court, by failing to
record its satisfaction on the twin conditions under Section 37, has in this
19
Court's view, committed an error. ”
e. I may also note that in the context of prolonged custody under the
UAPA, a bench of two learned judges of the Supreme Court has
referred the question of interplay between the constitutional
safeguard of life and liberty at the pre-trial stage, and the statutory
20
restrictions of grant of bail, to a larger Bench .
22. Having regard to the above, for the present, in the context of the
NDPS Act, I am of the view that the Court is required to consider both,
the period of pre-trial incarceration and satisfaction of Section 37 of
NDPS Act. Neither the constitutional right nor the statutory regime can
be considered in isolation, ignoring the other; the Court must be mindful
of both while adjudicating a bail application.
23. In the present case, the petitioner has now been in custody for a
period of over 4 years and 5 months. This is undoubtedly a substantial
period. While the maximum period of imprisonment for the offence in
question is 20 years, the prosecution has only examined 13 out of 42
witnesses. With 29 witnesses still to testify, the likelihood of prolonged
proceedings cannot be brushed aside.
24. I am conscious that a detailed decision on merits at the stage of bail
is not warranted. However, the twin conditions incorporated in the
19
Emphasis supplied.
20
The Court had considered the question in Gulfisha Fatima v. State (Govt. of NCT of Delhi ) [2026
SCC OnLine SC 10], which was doubted by a subsequent pronouncement in Syed Iftikhar Andrabi v.
National Investigation Agency [2026 SCC OnLine SC 881].The question was therefore referred to a
larger Bench in Tasleem Ahmed v. State (NCT of Delhi) [2026 SCC OnLine SC 1707].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 18 of 28
statute, as explained in Mohd. Muslim and Sukhwinder Singh, make a
prima facie determination essential. The following discussion is intended
only for that purpose, and not to influence the ultimate adjudication on
evidence.
25. In the context of the NDPS Act and the Standing Order, the
following discrepancies in the procedure adopted by the respondent, lend
credence to the petitioner‟s case:
a. No classification, weighing, sampling or testing at the point of
recovery: Paragraph 2.1 of the Standing Order provides for
classification and weighing at the spot of seizure. No such
procedure was undertaken at the hospital at the time of recovery of
each of the five lots of contraband. Mr. Rajavat relied upon the
judgment of the Rajasthan High Court in Kuka Ram, which
ascribes vital importance to this procedural safeguard. The High
Court, in fact, granted bail to an accused on this account. Mr.
Tyagi, however, submitted that the Supreme Court in Khet Singh v.
21 22
Union of India and in State of Punjab v. Makhan Chand
permitted such a procedure. In Khet Singh, however, the seizure
occurred on a roadside and the Court held that the seizure mahazar
could be prepared at a later stage, as there were no facilities for
seizure of the contraband at the spot. Emphasis was placed on
recording justifiable and reasonable grounds for such delay and it
was noted that inordinate delay in preparing the seizure mahazar
would itself give an opportunity for tampering. This was followed
21
(2002) 4 SCC 380, [hereinafter, “ Khet Singh ”].
22
(2004) 3 SCC 453, [hereinafter, “ Makhan Chand ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 19 of 28
in Makhan Chand , which was again a case of recovery on the
roadside. The Court again noticed that the facilities for weighing at
the spot of recovery was not available. In the present case, in
contrast, the recovery took place in a hospital setting, where the
facilities for field testing and weighing could, in my prima facie
view, have been provided.
b. Discrepancies in the chain of custody: The capsules were
recovered between 25.04.2022 to 01.05.2022. The petitioner was
discharged from the hospital on 07.05.2022, whereas the formal
seizure of the recovered contraband and the petitioner‟s arrest were
effected only on 08.05.2022. At the time of each recovery, the
recovered capsules were kept in a container, affixed with a DR slip
and sealed with the Customs plier seal, with the marking „Customs
PD IGI‟ on one side and „Ashoka Stambh‟ on the other. During the
intervening period, the sealed containers and the custody of the
petitioner was transferred from one officer to another on as many
as 21 occasions. It also appears that the seal, which is general in
nature, was handed over to the next officer to enable him to carry
out sealing of any further recoveries, if required. Thus, the
recovered capsules and the seals remained in the custody of
Customs Officers throughout this period, and were in the custody
of the same person at any given point of time. In these
circumstances, the chain of custody cannot be said to adequately
safeguard against the possibility of tampering or contamination.
Further, the sample seals affixed to the containers at the time of
recovery at the hospital were not sent for forensic examination,
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 20 of 28
contrary to the procedure contemplated under paragraph 2.9 of the
Standing Order and the judgment of the Supreme Court in Noor
23
Aga v. State of Punjab & Anr. . In Noor Aga , the Supreme Court
observed that where the seal was not deposited in the malkhana,
the sanctity of the recovery could not be said to have been
adequately safeguarded. In the present case, the absence of forensic
examination of the seals assumes greater significance, particularly
in view of the multiple transfers of custody. Accordingly, these
circumstances give rise to a prima facie doubt regarding the chain
of custody.
c. Formal seizure in front of different witnesses: The capsules were
recovered between 08:10 PM on 25.04.2022 and 07:30 PM on
01.05.2022. However, even assuming that they were not required
to be seized at the time of recovery, the formal seizure did not
occur until 08.05.2022. The final seizure was also not in the
presence of any of the panch witnesses at the time of recovery, but
a completely new set of witnesses.
d. Delay in depositing contraband in malkhana: The recovered
contraband was not sent to the malkhana during this time, but was
handed over from one Customs officer to the other, as evidenced
by handing over memos. Paragraph 3.3 of the Standing Order
requires the drugs to be deposited and sealed in the godown within
48 hours of seizure. In the present case, the contraband was, in fact,
deposited in the malkhana seven to thirteen days after recovery.
23
(2008) 16 SCC 417 [hereinafter, “ Noor Aga ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 21 of 28
e. Delay in sampling under Section 52A NDPS Act: Another
significant delay has occurred in the present case between seizure
on 08.05.2022 and sampling before the Magistrate on 31.05.2022.
The delay of over three weeks has not been explained at all.
26. With regard to the testing and sampling procedure, Mr. Rajavat
argued that mixing of the contents of all the capsules from each lot was
impermissible, relying upon paragraph 2.4 of the Standing Order, and
judgments of this Court in Amani Fidel Chris, Amina, and Betty Rame .
However, Mr. Tyagi submitted that mixing of the contents of the capsules
in each lot was permitted by paragraph 2.5 of the Standing Order, as
reproduced above. Having regard to paragraph 2.5 of the Standing Order
and the fact that the capsules were all apparently identical, I do not
consider it appropriate to render a prima facie finding in favour of the
petitioner on this point at this stage, but leave it open to trial on evidence.
27. In two of the judgments cited by Mr. Tyagi – Kashif and Bharat
Aambale – the Supreme Court has emphasized that procedural violations
in NDPS cases ought not to be standalone grounds for acquittal or grant
of bail. The judgment in Noor Aga cited by Mr. Rajavat, in contrast,
correlated sanctity of the physical evidence with substantial compliance
of the Standing Order, failing which adverse inference would have to be
drawn against the prosecution. The case concerned holding of samples at
the airport for a period of three days without depositing in the malkhana ,
which was construed as a lacuna in the prosecution case.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 22 of 28
28. Mr. Tyagi emphasized that the judgments in Khet Singh, Makhan
Chand, Noor Aga, as well as Kashif, were all considered by the Supreme
Court in Bharat Aambale and the following principles were laid down:
“ 29. Non-compliance or delayed compliance with the procedure
prescribed under Section 52-A of the NDPS Act or the Rules/Standing
Order(s) thereunder may lead the court to draw an adverse inference
against the prosecution. However, no hard-and-fast rule can be laid down
as to when such inference may be drawn, and it would all depend on the
peculiar facts and circumstances of each case. Such delay or deviation
from Section 52-A of the NDPS Act or the Standing Order(s)/Rules
thereunder will not, by itself, be fatal to the case of the prosecution, unless
there are discrepancies in the physical evidence which may not have been
there had such compliance been done. What is required is that the courts
take a holistic and cumulative view of the discrepancies that exist in the
physical evidence adduced by the prosecution and correlate or link the same
with any procedural lapses or deviations. Thus, whenever, there is any
deviation or non-compliance of the procedure envisaged under Section 52-
A, the courts are required to appreciate the same keeping in mind the
discrepancies that exist in the prosecution's case. In such instances of
procedural error or deficiency, the courts ought to be extra-careful and
must not overlook or brush aside the discrepancies lightly and rather
should scrutinise the material on record even more stringently to satisfy
itself of the aspects of possession, seizure or recovery of such material in
the first place.
30. In such circumstances, particularly where there has been lapse on the
part of the police in either following the procedure laid down in Section
52-A of the NDPS Act or the prosecution in adequately proving
compliance of the same, it would not be appropriate for the courts to
resort to the statutory presumption of commission of an offence from the
possession of illicit material under Section 54 of the NDPS Act, unless the
court is otherwise satisfied as regards the seizure or recovery of such
material from the accused persons from the other material on record.
Similarly, irrespective of any failure to follow the procedure laid under
Section 52-A of the NDPS Act, if the other material on record adduced by
the prosecution inspires confidence and satisfies the court regarding both
the recovery and possession of the contraband from the accused, then even
in such cases, the courts can without hesitation proceed for conviction
notwithstanding any procedural defect in terms of Section 52-A of the NDPS
Act.
xxx xxx xxx
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 23 of 28
33. Thus, from above it is clear that the procedure prescribed by the
Standing Order(s)/Rules in terms of Section 52-A of the NDPS Act is only
intended to guide the officers and to ensure that a fair procedure is
adopted by the officer in charge of the investigation, and as such what is
required is substantial compliance of the procedure laid therein.
33.1. We say so because, due to varying circumstances, there may be
situations wherein it may not always be possible to forward the seized
contraband immediately for the purpose of sampling. This could be due to
various factors, such as the sheer volume of the contraband, the peculiar
nature of the place of seizure, or owing to the volatility of the substance so
seized that may warrant slow and safe handling. There could be situations
where such contraband after being sampled cannot be preserved due to its
hazardous nature and must be destroyed forthwith or vice-versa where the
nature of the case demands that they are preserved and remain untouched.
Due to such multitude of possibilities or situations, neither can the police
be realistically expected to rigidly adhere to the procedure laid down in
Section 52-A or its allied Rules/Orders, nor can a straitjacket formula be
applied for insisting compliance of each procedure in a specified timeline to
the letter, due to varying situations or requirements of each case.
33.2.Thus, what is actually required is only a substantial compliance of the
procedure laid down under Section 52-A of the NDPS Act and the
Standing Order(s)/Rules framed thereunder, and any discrepancy or
deviation in the same may lead the court to draw an adverse inference
against the police as per the facts of each and every case.
xxx xxx xxx
38. Even in cases where there is non-compliance with the procedural
requirements of Section 52-A, it does not necessarily vitiate the trial or
warrant an automatic acquittal. The courts have consistently held that
procedural lapses must be viewed in the context of the overall evidence. If
the prosecution can otherwise establish the chain of custody, corroborate
the seizure with credible testimony, and prove its case beyond reasonable
doubt, the mere non-compliance with Section 52-A may not be fatal . The
emphasis must be on substantive justice rather than procedural
technicalities, and keeping in mind that the salutary objective of the NDPS
24
Act is to curb the menace of drug trafficking.”
29. Bharat Aambale , thus, itself recognizes the importance of the
Standing Orders and the requirement of a higher threshold of scrutiny in
24
Emphasis supplied.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 24 of 28
cases of violation of the Standing Orders, although treating them as
“ guidance ”, rather than mandatory. The issue is to be decided on the
touchstone of substantial compliance.
30. Looking at the material on record in this perspective, I am prima
facie of the view that the discrepancies discussed in paragraph 25 above,
preclude a finding of substantial compliance with the NDPS Act and the
Standing Order, at this stage. Mr. Tyagi‟s submission with regard to the
chain of custody must, in these circumstances, be established by the
prosecution at the time of trial, and the accused is entitled to the benefit
of doubt at this stage. It bears reiteration that, consistent with Mohd.
Muslim , the Court‟s task at this stage is a prima facie assessment. The
petitioner also has no other criminal antecedents. On this standard, I am
of the view that the petitioner has made out the requirement of Section 37
of the NDPS Act and is not liable for continued pre-trial incarceration,
particularly in the context of over 4 years and 5 months custody already
undergone, with little prospect that the trial can be concluded
expeditiously.
31. The petitioner, as noted above, is a citizen of Democratic Republic
of Congo. His release must therefore be guided by strict conditions,
including as to the requirement of sureties. These principles having
recently been explained by the Supreme Court in Union of India v.
25
Chidiebere Kingsley Nawchara .
ONCLUSION
E. C
32. Having regard to the aforesaid, it is therefore directed that the
petitioner will be released on bail in connection with File/C. No.
25
2026 SCC OnLine SC 1585 [hereinafter, “ Chidiebere Kingsley Nawchara ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 25 of 28
VIII(AP)(10)P&I/3453-D/Arrival/2022, registered at Police Station
Customs, IGI Airport, Delhi, subject to furnishing a personal bond in the
sum of Rs.1,00,000/-, with two sureties in the like amount, to the
satisfaction of the Special Court/Duty Magistrate and the following
further conditions:
a) The sureties be verified by the Special Court prior to release, in
terms of Chidiebere Kingsley Nawchara.
b) A lien/charge equal to the amount of the surety bond be created on
their property in any form, including immovable property.
c) The petitioner shall appear before the Special Court on each date of
hearing;
d) The petitioner shall furnish his mobile number to the concerned
IO/Station House Officer, and shall ensure that the same remains
operational at all times. The mobile number shall not be switched
off or changed without prior intimation to the IO during the
pendency of the trial;
e) The petitioner shall furnish his permanent address to the Special
Court, as also the address at which he shall reside during the
pendency of the case. In the event of any change in his residential
address, the petitioner shall intimate the Investigating Officer
[“IO”] and file an affidavit to that effect before the Special Court.
The address be verified in accordance with Chidiebere Kingsley
Nawchara, prior to the petitioner‟s release;
f) The petitioner shall surrender his passport, if any, before the
Special Court;
g) The petitioner shall not leave the country without the prior
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 26 of 28
permission of the Special Court;
h) The petitioner shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case, or tamper with the evidence, in any manner
whatsoever;
i) The petitioner shall not commit any offence during the period of
his release on bail.
j) The petitioner shall file an affidavit indicating his source of
income/funds within India, and also give details of all bank
accounts, if any, in the country, before the Special Court;
k) In terms of the judgment of the Supreme Court in Frank Vitus v.
26
Narcotics Control Bureau and Ors. , the State shall immediately
communicate the order granting bail, to the concerned Foreign
Registration Officer appointed under Rule 3 of the Registration of
Foreigners Rules, 1992, who in turn, shall communicate the order
to all concerned authorities including civil authorities in order to
enable them to take appropriate steps under the Foreigners Act,
1946, the Registration of Foreigners Rules, 1992, and Foreigners
Order, 1948, in accordance with law;
l) The petitioner shall register with the Foreigners Regional
Registration Office within one week of release, and inform the
Investigating Officer [“IO”], in writing, of having made such
registration;
m) The IO is directed to inform the Embassy of Democratic Republic
of Congo of the petitioner‟s involvement in the aforesaid case.
26
(2025) 3 SCC 1.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 27 of 28
33. The bail application, alongwith pending application, is disposed of
in terms of the above.
34. It is clarified that any observations made in the present order are
solely for the purpose of deciding the present bail application, and shall
neither influence the trial proceedings, nor be construed as an expression
of opinion on the merits of the case.
35. Copy of the order be communicated to the concerned Jail
Superintendent electronically for information and necessary compliance.
PRATEEK JALAN, J
OCTOBER 16, 2026
SS/SM/AD/
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 459/2026 Page 28 of 28