Shadrach Nwogbo vs Customs
- Court
- Delhi High Court
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Decision : 06.11.2026
# CNR No. DLHC010140502026
BAIL APPLN. 1358/2026
+
SHADRACH NWOGBO .....Petitioner
Through: Mr. Meghan, Advocate.
versus
CUSTOMS .....Respondent
Through: Mr. PuneettSinghal, SPP and Mr. P.
SaiLeshanth, Advs.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
SACHIN DATTA, J. ( ORAL)
1. The present petition has been filed by the petitioner, a foreign national
holding a passport of Republic of Liberia and stated to be a resident of Lagos,
Nigeria, seeking regular bail under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (‘BNSS’) in SC No. 159/2025 arising out of
CASENO. FILE NO: VIII(AP)(10) P&I/ 5096-B/ ARRIVAL/ 2024, a
complaint filed by the respondent/Customs for offences under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), pending before
the Special Judge, NDPS-02, Dwarka Courts, New Delhi.
2. The Special Judge, vide order dated 09.03.2026, dismissed the bail
application, being I.A. No. 1/2026 in SC No. 159-2025, filed by the
petitioner.
3. The factual conspectus of the case is that on 07.09.2024, the petitioner
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arrived at IGI Airport, Delhi (T-3) from Dubai. The Panchnama recorded that
the customs officers, acting on the basis of specific intelligence, intercepted
the petitioner and scanned his baggage through X-ray and asked him to pass
through the Door Frame metal detector. His baggage X-ray and the metal
detector revealed nothing suspicious. The first recovery took place in the
customs preventive room, at the airport itself, where the petitioner ejected 28
capsules.
4. The Panchnama-1 further records that the petitioner admitted having
ingested intestine capsules containing narcotics and stated that more were
inside his body. It is recorded that the petitioner willingly consented for
appropriate medical procedures for their ejection. It is pointed out that
Panchnama -1 ran from 06:30 PM to 08:30 PM on 07.09.2024 (as recorded in
the Panchnama itself). A Notice under Section 103 Customs Act, 1962 was
issued on 07.09.2024. The petitioner was thereafter taken to Safdarjung
Hospital where he ejected 56 more capsules on 08.09.2024 and 09.09.2024.
The same is recorded in the Panchnama 2 - 6 and in total, 84 capsules were
recovered and the white powder contained in them weighed around 1660
grams (net) and tested positive for cocaine.
5. The petitioner was discharged from the hospital at about 17:15 Hrs on
10.09.2024 and brought to the airport. Thereafter, the petitioner was formally
arrested on 11.09.2024 at about 16:00 Hrs. He was produced before the Trial
Court on the evening of 11.09.2024
6. In the order dated 09.03.2026, passed by the learned Special Judge
held, it was recorded as under:
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7. It is in the aforesaid context the present petition has been filed.
8. Learned counsel for the petitioner made elaborate submissions on the
previous date of the hearing. The same are duly taken note of in the order
dated 03.11.2026, which reads as under:
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9. Learned counsel for the respondent/Customs submits that the petitioner
was intercepted on 07.09.2024. It is pointed out that the Panchnama 1 was
concluded that evening. It is submitted that the petitioner was thereafter
hospitalised and was discharged on 10.09.2024. It is submitted that the time
so taken does not amount to delay in production. It is urged that until the
nature of the contraband was ascertained, the petitioner could not have been
arrested. It is further submitted that the recovery is in far excess of the
commercial quantity. It is emphasised that the petitioner consented to the
removal of capsules, and therefore, Section 103(8) of the Customs Act
applies.
10. Learned counsel for the respondent submits that the petitioner was
submitted to hospital to ensure the safety of his life and the period may not be
counted as detention period.
11. No doubt, the allegations are serious. At the outset, it is noticed that in
the factual conspectus of the present case, the judgment of a coordinate Bench
of this Court in case of Kitoko Ngiembo Alain vs. Customs ,
2026:DHC:1338 , has a direct bearing on the facts and circumstances of the
present case. In the said case, in a similar conspectus, it was observed as
under:
“21. Herein, admittedly, 19 capsules had been recovered
immediately after the interception, when the applicant was taken to
the toilet of IGI Airport itself. The contraband contained in 19
capsules, suspected to be cocaine, was seized, and thus offence stood
revealed, then and there. In such a situation, the applicant should
have been arrested immediately and produced before the Court,
even if further recovery was to be affected. Thereafter, Customs, as
per order of the Court, could have taken him to hospital for further
easing out of capsules. In case, delay in hospitalization had any
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potential of resulting in health-hazard for the applicant, remand
could have taken at the hospital also, by making appropriate request
to the Court to come to the hospital for said purpose. Thus, applicant
was, apparently, detained without any authorization, particularly
when part-recovery had already taken place at Airport and offence
stood revealed. Respondent cannot be absolved merely on the
pretext that formal arrest was later.
Thus, palpably, the applicant
remained in illegal custody of Customs from the date of interception
till 25.02.2022.”
12. During the course of hearing, learned counsel for the petitioner has also
relied upon the judgment of the Supreme Court in Sri Sujit Das and Ors. Etc.
vs. Union of India , , decided on 05.11.2026 wherein it has
2026 INSC 1195
been heldthat the period of 24 hours stipulated under Article 22(2) of the
Constitution of India commences from the moment a person is detained and
his liberty is curtailed, and not from the time when his formal arrest is
recorded. The Court observed the following:
“58. …… The key expression appearing in clause (2) of Article 22 is
‘arrested and detained in custody’. What is the meaning of this
expression? Does it mean that the two crucial words appearing in
this expression, ‘arrest’ and ‘detain’, should be assigned separate
meanings or they mean one and the same thing. It is important to
note that the expression is conjunctive and not disjunctive. Had it
been disjunctive, two separate meanings could have been assigned
to the two words. But the expression being joint and conjunctive, the
two words appearing therein would mean one and the same thing.
This is because the Constitution does not recognize any detention
dehors arrest. Thus, the prescription of 24 hours time period would
commence the moment a person is detained by the arresting
authority suspecting him to have committed an offence, when his
liberty is effectively curtailed. To that extent, the words appearing in
clause (2) of Article 22 i.e. ‘arrested’ and ‘detained’ are
synonymous. Any attempt to draw an artificial distinction between
‘arrest’ and ‘detention’ would dilute or negate the fundamental
protection guaranteed by the Constitution under clause (2) of Article
22. Such an endeavour should be avoided. We must adopt that
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interpretation which enhances and furthers the constitutional
objective.”
13. In the present case, it is evident that the offences stood revealed on
07.09.2026 itself. In terms of the dicta laid down in Kitoko Ngiembo Alain
(supra), the petitioner should have been arrested and produced before the
Court upon the initial recovery made at the airport itself even if further
recovery was to follow. In that case, it was also noticed that remand could
have been taken at the hospital and the Customs cannot be absolved merely
because the formal arrest was recorded later. Further, it is evident from the
Panchnamas that the petitioner was in continuous control of the customs
officers from 07.09.2024 onwards and he was produced before the Trial Court
only on the evening of 11.09.2024, i.e., well beyond 24 hours from the time
the accused was first detained.
14. The contention of the learned counsel for the respondent that the
petitioner could not have been arrested until the nature of the contraband was
ascertained, cannot be accepted, in view of the mandate of Article 22(2) of the
Constitution of India as explained in Sri Sujit Das and Ors. Etc. (supra) ,
wherein it was held as under:
“43. That apart, as we have indicated in the cases of
AryamanPattnayak and Kannan, here also the focus and thrust of the
learned Judge in trying to distinguish between detention and arrest
is not only misplaced but unwarranted as well. As already noted
supra, compliance with the procedural formalities of the NDPS Act
and the Rules of 2022 does not in any manner prevent the arresting
authority from producing the detainee before the magistrate within
the constitutionally prescribed time limit of 24 hours. The only
exception the Constitution itself provides is the time necessary for
the journey from the place of arrest to the court of the magistrate.
Article 22(2) does not sanction exclusion of the time taken for
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enquiry and investigation before the arresting authority could effect
arrest of the detainee. This is beyond the mandate of Article 22(2) of
the Constitution. Article 22(2) does not sanction creation of any
buffer zone where the liberty of an individual is curtailed for
investigating purposes but not formally shown as arrested.
Creation
or contemplation of such buffer zone is unconstitutional. There
cannot be any suspension or keeping in abeyance of the
constitutional safeguards provided under clause (2) of Article 22
save and except what is provided thereunder. Therefore, the
declaration that the period of 24 hours for the purposes of Article
22(2) commences from the completion of such search and seizure
and only from the time of arrest recorded by the arresting authority
is not only unsustainable in law but is entirely unconstitutional. At
the cost of repetition, we assert that whether it is Section 67 of the
NDPS Act or Rule 3 of the Rules of 2022, there is no statutory
injunction preventing the detaining authority from producing the
detainee before the magistrate within 24 hours of such detention.
Therefore, the view taken by the learned Judge that the 24 hours
period commences upon only formal arrest and not during
antecedent detention necessitated by statutory procedure of seizure
and inventory is contrary to the constitutional mandate of clause (2)
of Article 22 read with Section 58 BNSS (Section 57 CrPC) and does
not lay down the correct law on this point.
XXX XXX XXX
69. In the circumstances, we would like to summarize our
conclusions as under: ...............
(iii) while computing the 24 hours deadline, no other time period is
permitted to be excluded therefrom except the time necessary for the
journey from the place of arrest to the court of the magistrate;”
15. Article 22(2) admits of no exclusion for the time taken to complete the
inquiries before a formal arrest.
16. Insofar as the reliance placed by the respondenton section 103(8) of the
Customs Act is concerned, it is noticed that the said provision does not speak
of production under Article 22(2) of the Constitution of India of a person from
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whom contraband has already been seized and who was held by the customs
officers.
17. The said sub-section only dispenses with the requirement of producing
before the Magistrate, for an order of screening/X-ray under Section 103 of
the Customs Act, a person who admits that goods liable to confiscation are
secreted inside his body and who voluntarily submits himself for suitable
action for bringing out such goods. It does not dilute the constitutional
mandate of Article 22(2) of the Constitution of India, which operates the
moment a person is detained. It is also pointed out that the petitioner has been
in custody for about two years and two months, and only 8out of 23 witnesses
have been examined so far. There is no reasonable prospect of the trial being
concluded any time soon. In this regard, it has been observed by the Supreme
Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi) , (2023) 18 SCC
166 as under:
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18. It is also noticed that in Union of India v. Chidiebere Kingsley
Nawchara , 2026 SCC OnLine SC 1585 , the Supreme Court has held that
special statutes cannot become vehicles of indefinite detention. It was further
emphasised that the constitutional guarantee personal liberty and statutory
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restriction must be considered in harmony. The said judgment has also been
taken note of in the judgment of the coordinate Bench of this Court in John
Seruwu vs. Customs , 2026:DHC:9779, and the Court noted as under:
19. Considering the totality of the circumstances, the bail application is,
accordingly, allowed. The Applicant shall be released on regular bail upon
furnishing a personal bond in the sum of INR 50,000/- with two sureties of the
like amount, to the satisfaction of the Trial Court/Duty MM, subject to the
following conditions:
(i) Before his release, the Applicant shall furnish his complete and
verifiable residential address in Delhi, along with his contact
particulars. He shall reside at the said address during the pendency of
the trial and shall not change his residence without prior permission of
the Trial Court. The investigating agency shall physically verify the
address within three days of its disclosure and place the verification
report before the Trial Court prior to his release.
(ii) The Applicant shall furnish sureties in accordance with the
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directions issued in Chidiebere Kingsley Nawchara (supra). The
identity, address and financial capacity of the sureties shall be verified
in accordance with the procedure contemplated in the said judgment.
Such verification shall be completed within three days, and the
verification reports shall be placed before the Trial Court prior to the
Applicant’s release. A lien or charge equal to the amount of each surety
bond shall be created over the property furnished by the respective
surety. If, despite sufficient efforts, the Applicant is unable to arrange
two sureties, the Trial Court may relax this requirement by a written
order recording reasons.
(iii) The Applicant shall deposit his passport, including any expired
passport in his possession, with the Trial Court before his release. If the
passport is already in the custody of any authority, the IO shall ensure
that it is placed before the Trial Court. If the Applicant does not possess
or is unable to produce his passport, he shall disclose the circumstances
and its whereabouts, if known, by way of an affidavit. He shall not
leave India without prior permission of the Trial Court.
(iv) The Applicant shall register with the Foreigners Regional
Registration Office [“FRRO”] within one week of his release and
communicate such registration in writing to the IO and the Trial Court.
(v) The Applicant shall not leave the National Capital Region
without prior permission of the Trial Court. He shall mark his presence
once every month at the police station having jurisdiction over his
verified place of residence, at a time specified by the officer in charge.
(vi) The Applicant shall furnish an operational Indian mobile
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number to the IO and the Trial Court within one week of his release. He
shall keep the number active and accessible at all times. Any change in
the number or other contact particulars shall be promptly
communicated to the IO and the Trial Court.
(vii) The Applicant shall appear before the Trial Court on every date
of hearing, unless exempted.
(viii) The Applicant shall, within one week of his release, file an
affidavit before the Trial Court disclosing his source of income or
funds in India and the particulars of all bank accounts, if any,
maintained by him in the country.
(ix) The IO shall, through written communication, inform the
Embassy of the Republic of Liberia of the Applicant’s involvement in
the present case and his release on bail. A copy of this order shall also
be forwarded to the concerned FRRO and immigration authorities for
information and necessary action, if any, in accordance with law.
20. The Trial Court shall ensure compliance with the applicable directions
in Chidiebere Kingsley Nawchara (supra) while accepting the bail bonds and
verifying the sureties. Any breach of the conditions imposed herein shall
entitle Customs to seek cancellation of bail, in accordance with law. The Trial
Court shall endeavour to conclude the proceedings expeditiously. Both sides
shall extend their cooperation in that regard.
21. The prima facie observations made in this order are confined to the
consideration of the present bail application and shall not influence the
determination of the case on merits.
22. The bail application stands disposed of in the above terms.
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23. Copy of this order be communicated to the Trial Court and the
concerned Jail Superintendent, for necessary information and compliance.
SACHIN DATTA, J
NOVEMBER 6, 2026/ at/ka
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