Salum Mohamed Fundogoro vs Customs
- Court
- Delhi High Court
$~P-3
* 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. DLHC010039752026
+ BAIL APPLN. 516/2026
SALUM MOHAMED FUNDOGORO .....Petitioner
Through: Ms. Arshiya Ghose, Ms. Rudrali
Patil and Ms. Varani Agarwal,
Advocates.
versus
CUSTOMS .....Respondent
Through: Mr. Gibran Naushad, SSC with
Mr. Hasan Haider & Mr. Anish
Mishra, Advocates.
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/3407-
A/Arrival/2022, registered under Sections 8/21/23/29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”], at Police
Station Customs, IGI Airport, Delhi.
2. I have heard Ms. Arshiya Ghose, learned counsel for the petitioner,
and Mr. Gibran Naushad, learned Standing Counsel for the respondent.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 516/2026 Page 1 of 28
3. This petition was heard alongwith BAIL APPLN. 4650/2025 and
BAIL APPLN. 459/2026, 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 08.02.2026 and
a status report dated 08.04.2026.
A. P ROSECUTION C ASE
5. The prosecution case, as emerging from the material on record, is
as follows:
a. The petitioner, who is a Tanzanian national, arrived at Terminal-3,
IGI Airport, New Delhi from Tanzania on 08.04.2022.
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.
e. As the conduct of the petitioner remained suspicious, he was
served with a notice under Section 103 of the Customs Act. The
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 2 of 28
petitioner voluntarily stated that he had ingested some
pellets/capsules containing narcotics. He also agreed to undergo
procedure for removal of the said pellets/capsules. The petitioner
was accordingly taken to RML Hospital on 08.04.2022 itself.
f. The petitioner was admitted in hospital on 08.04.2022. During his
stay, i.e. between 08.04.2022. to 13.04.2022, 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
P ANCHNAMA
D ETENTION
N O . OF
C APSULES
RECOVERED
P ANCHNA
P ANCH
W ITNESSES
R ECEIPT
[“DR”] N O .
MA
O FFICER
Panchnama 1
at RML
Hospital
08.04.2022 -
08:05 PM
DR No.
07024
25 Vijendra
Singh
Meena,
ACO
Mr. Govind
and Mr.
Amit
Panchnama 2
at RML
Hospital
09.04.2022 -
06:15 AM
DR No.
07025
24 Deepak
Prasad
Joshi, ACS
Mr. Pooran
and Mr.
Rakesh
Panchnama 3
at RML
Hospital
09.04.2022 -
07:20 PM
DR No.
07026
05 Sanjay
Kumar
Bhagat,
ACO
Mr. Sachin
and Mr.
Amad
Panchnama 4
at RML
Hospital
10.04.2022 -
01:15 PM
DR No.
07027
05 Dinesh
Prasad,
ACO
Mr. Govind
and Mr.
Dharmender
g. At the time of each recovery, the capsules were kept in a plastic
container and sealed with Customs pliers seal having „Customs PD
IGI‟ marking on one side and „Ashoka Stambh‟ on the other.
During the intervening period, the custody of the petitioner, the
recovered substance, as well as the aforesaid Customs pliers seal,
remained with the respondent authorities, as evidenced by the
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 3 of 28
1
handing-over memos dated 08.04.2022 till 13.04.2022 . The
custody of these articles was handed over from one officer to
another on 12 occasions during the said period.
h. On 13.04.2022, the petitioner was discharged from hospital, and
taken to IGI Airport. Independent panch witnesses [namely Mr.
Anil Kumar Gautam and Mr. Jitender Kumar] were called and
shown the four sealed containers, who found the seal and
signatures on the DR slip affixed to the containers intact.
i. Thereafter, each of the 59 capsules, which were kept in four
different plastic containers, were opened with a blade, in the
presence of independent panch witnesses and the petitioner. Each
capsule was found to contain white powdery substance. A small
quantity was taken from each of the 59 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 four sets
were mixed together and kept in four different transparent
polythene pouches. The packing material of the capsules was
preserved separately. The net weight of the substance recovered
was approximately 702 grams.
k. The four pouches were kept in a plastic container stitched in cloth
and marked „X‟. The cloth marked „X‟ was sealed with a Customs
preventive seal “IGI AIRPORT CUSTOMS NEW DELHI T-3
AIRPORT OPEN D”, after completion of procedural formalities.
1
Annexure P7 to the bail application.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 4 of 28
This was seized vide DR No. 64489 and was deposited in the
malkhana .
l. Panchnama-5 dated 13/14.04.2022 was prepared in respect of the
aforesaid proceedings.
m. The petitioner was ultimately arrested on 14.04.2022. An
intimation of his arrest was communicated to the Ministry of
External Affairs, New Delhi and the High Commission of the
Republic of Tanzania.
n. Subsequently, the petitioner tendered his voluntary statement on
24.04.2022 under Section 67 of the NDPS Act, where he inter alia
admitted the possession, recovery and attempt to import narcotic
substances.
o. On 06.08.2022, 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 13/14.04.2022, 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
26.09.2022, tested positive for cocaine .
q. On 23.03.2023, charges were framed against the petitioner under
Sections 21(c) and 23(c) of the NDPS Act.
6. Nominal Roll furnished by the jail authorities shows that the
petitioner was in custody for 3 years, 11 months, and 14 days, as of
27.03.2026. He has thus now been in custody for almost 4 years and 6
months.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 516/2026 Page 5 of 28
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
any narcotic drugs, psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances, controlled substances or
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 6 of 28
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
2
evidence in respect of such offence.]”
2
Emphasis supplied.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 516/2026 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
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
19:24
BAIL APPLN. 516/2026 Page 8 of 28
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
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
3
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 08.04.2022 when he was apprehended at IGI
Airport and not on 14.04.2022, when he was formally arrested. It has
been argued, relying upon judgments of this Court in Habiob Bedru
4 5
Omer v. Customs , Kitoko Ngiembo Alain v. Customs , and Maria
6
Nuemia Albertina v. Customs , that his arrest was illegal as he was not
produced before a Magistrate within 24 hours, but only on 14.04.2022.
However, in view of apparently conflicting authorities of this Court on
7
this point, in Christina Katushabe Ayebale v. Customs , Lydia Kabukazi
8 9
Aloyo v. Customs , and Joshua Kuteesa v. Customs , Ms. Ghose, in the
3
Emphasis supplied.
4
2025 SCC OnLine Del 4263.
5
BAIL APPLN. 3428/2025, decided on 16.02.2026.
6
BAIL APPLN. 4689/2025, decided on 17.03.2026.
7
BAIL APPLN. 4890/2025, decided on 17.12.2025.
8
BAIL APPLN. 1429/2025, decided on 24.12.2025.
9
BAIL APPLN. 1757/2025, decided on 06.04.2026.
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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course of hearing, gave up this point, rather than seeking reference to a
larger Bench for the purpose of resolving the conflict.
10. The principal submissions advanced by Ms. Ghose 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 prolonged pre-trial incarceration,
without likelihood of expeditious conclusion of proceedings.
11. In support of the first argument, Ms. Ghose submits as follows:
a. The present prosecution is founded upon four separate recoveries
made between 08.04.2022 and 10.04.2022, in respect of which
separate panchnamas were drawn. Ms. Ghose 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, she places reliance on a judgment of the Rajasthan High
10
Court in Kuka Ram v. State of Rajasthan.
b. She further draws my attention to the formal seizure memo dated
13/14.04.2022 and the four 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 13.04.2022,
10
2024 SCC OnLine Raj 3705 [hereinafter, “ Kuka Ram ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 10 of 28
which, according to Ms. Ghose, is impermissible and violative of
the constitutional safeguards available to the petitioner.
c. In the present case, following the field testing on 13.04.2022,
which indicated the presence of cocaine , the contents of the
capsules recovered in each of the four separate recoveries, were
mixed together and thereafter placed in four separate pouches.
Samples were ultimately drawn only on 06.08.2022, pursuant to
the order passed by the Magistrate‟s Court on the application under
Section 52A of the NDPS Act. Ms. Ghose 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 her,
the mixing of the contents of the four separate recoveries prior to
the drawing of representative samples was impermissible and
vitiated the sampling procedure. She places reliance on judgments
11
of this Court in Amani Fidel Chris v. Narcotics Control Bureau ,
12 13
Amina v. State NCT of Delhi , and Betty Rame v. NCB .
d. Despite the recoveries having been effected between 08.04.2022
and 10.04.2022, the seized contraband was deposited in the
godown only on 14.04.2022. The seized contraband admittedly
remained in the custody of Customs officials during the
intervening period. Ms. Ghose submits that there was, therefore, a
delay of approximately four to six days in depositing the seized
contraband in the godown, contrary to paragraph 3.3 of the
11
2020 SCC OnLine Del 2080 [hereinafter, “ Amani Fidel Chris ”].
12
2023 SCC OnLine Del 3491 [hereinafter, “ Amina ”].
13
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
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BAIL APPLN. 516/2026 Page 11 of 28
Standing Order, which requires the seized drugs to be deposited in
the godown within 48 hours of seizure.
e. Ms. Ghose further points out that, although field testing of the
seized contraband was conducted on 13.04.2022, formal sampling
was carried out only on 06.08.2022 before the Magistrate‟s Court,
resulting in a delay of approximately four months. She 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, Ms. Ghose submits that the petitioner has been incarcerated
for a period of almost 4 years and 6 months, while only 13 out of 33
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. Naushad, on the other hand, submits that the present case
involves recovery of 702 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. Naushad submits that the contention with regard to violation of
the Standing Order, as urged by Ms. Ghose, is also insufficient for grant
of bail in the present case. He submits, relying upon the judgments of the
14
Supreme Court in Mohd. Muslim v. State (NCT of Delhi) , Narcotics
14
2023 SCC OnLine SC 352, [hereinafter, “ Mohd. Muslim ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 12 of 28
15
Control Bureau v. Kashif , and Bharat Aambale v. State of
16
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. Naushad 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. Naushad 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. Naushad, 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. Naushad also disputed the petitioner‟s entitlement to bail on
account of prolonged incarceration. He drew my attention to a recent
15
(2024) 11 SCC 372, [hereinafter, “ Kashif ”].
16
(2025) 8 SCC 452, [hereinafter, “ Bharat Aambale ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 13 of 28
17
judgment of the Supreme Court in State of Punjab v. Sukhwinder Singh ,
which clearly lays down that the requirements of Section 37 of the NDPS
Act are not eclipsed by length of incarceration.
17. Ms. Ghose, in rejoinder, disputes Mr. Naushad‟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
17
2026 SCC Online SC 671, [hereinafter, “ Sukhwinder Singh ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 14 of 28
Control of Organised Crime Act, 1999, and Section 45 of the Prevention
of Money Laundering Act, 2002.
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.
18
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
18
(2021) 3 SCC 713, [hereinafter, “ K.A. Najeeb ”].
Signature Not Verified
Signed By:PARUL
VASHIST
Signing Date:16.10.2026
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BAIL APPLN. 516/2026 Page 15 of 28
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
19
right to speedy trial.
”
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 .
O
N .
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.) Rased Mia v. The 24.01.2024 1 year and 6
19
Emphasis supplied.
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R
S .
N O .
ASE O AUSE TITLE ATE OF
C N . C D
ERIOD OF
P
INCARCERATION
ORDER /
JUDGMENT
No.
14347/2023
State of West
Bengal
months
7. SLP (Crl.)
No.
14415/2023
Suman Sk. @
Samirul Islam v.
The State of West
Bengal
01.03.2024 Not mentioned
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. Naushad 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 LalrintluangaSailo [State of
Meghalaya v. LalrintluangaSailo, (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
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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 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 Court's view,
20
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
21
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 almost 4 years and 6 months. This is undoubtedly a substantial
period. While the maximum period of imprisonment for the offence in
20
Emphasis supplied.
21
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].
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question is 20 years, the prosecution has only examined 13 out of 33
witnesses. With 20 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
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 four lots of contraband. Ms. Ghose 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.
Naushad, however, submitted that the Supreme Court in Khet
22
Singh v. Union of India and in State of Punjab v. Makhan
23
Chand permitted such a procedure. In Khet Singh, however, the
seizure occurred on a roadside and the Court held that the seizure
22
(2002) 4 SCC 380, [hereinafter, “ Khet Singh ”].
23
(2004) 3 SCC 453, [hereinafter, “ Makhan Chand ”].
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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 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 08.04.2022 and 10.04.2022. The petitioner was
discharged from the hospital on 13.04.2022, whereas the formal
seizure of the recovered contraband and the petitioner‟s arrest were
effected only on 14.04.2022. 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. The same
seal, being general in nature, as well as the sealed containers, were
all handed over from one officer to the other, on as many as 12
occasions, during the intervening period, alongwith the custody of
the petitioner. Thus, the recovered capsules and the seal 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
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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, contrary to the procedure contemplated under
paragraph 2.9 of the Standing Order and the judgment of the
24
Supreme Court in Noor 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 08:00 PM on 08.04.2022 and 01:15 PM on
10.04.2022. However, even assuming that they were not required
to be seized at the time of recovery, the formal seizure did not
occur until 14.04.2022. 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
24
(2008) 16 SCC 417 [hereinafter, “ Noor Aga ”].
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of seizure. In the present case, the contraband was, in fact,
deposited in the malkhana four to six days after recovery.
e. Delay in sampling under Section 52A NDPS Act: Another
significant delay has occurred in the present case between seizure
on 14.04.2022 and sampling before the Magistrate on 06.08.2022.
The delay of approximately four months has not been explained at
all.
26. With regard to the testing and sampling procedure, Ms. Ghose
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. Naushad 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. Naushad – 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 Ms. Ghose, 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
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the airport for a period of three days without depositing in the malkhana ,
which was construed as a lacuna in the prosecution case.
28. Mr. Naushad 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
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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
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
25
Act is to curb the menace of drug trafficking.”
25
Emphasis supplied.
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29. Bharat Aambale , thus, itself recognizes the importance of the
Standing Orders and the requirement of a higher threshold of scrutiny in
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. Naushad‟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 almost 4 years and 6 months custody already
undergone, with little prospect that the trial can be concluded
expeditiously.
31. The petitioner, as noted above, is a citizen of Tanzania. 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. Chidiebere Kingsley
26
Nawchara .
26
2026 SCC OnLine SC 1585 [hereinafter, “ Chidiebere Kingsley Nawchara ”].
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E. C ONCLUSION
32. Having regard to the aforesaid, it is therefore directed that the
petitioner will be released on bail in connection with
File/C.No.VIII(AP)(10)P&I/3407-A/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
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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
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.
27
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
27
(2025) 3 SCC 1.
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Investigating Officer [“IO”], in writing, of having made such
registration.
m) The IO is directed to inform the High Commission of Tanzania of
the petitioner‟s involvement in the aforesaid case.
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
„ pv ‟/SM/AD/
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