[Sec 37 NDPS] Court Must Record Satisfaction That Accused Is Not Guilty Of Offence Or He Will Not Commit Same, Before Enlarging Him On Bail: Delhi HC

The Delhi High Court has rejected the bail plea of a Nigerian national who was arrested in a case registered under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and Section 14 of the Foreigners Act.

A Single Judge Bench of Justice Dinesh Kumar Sharma observed that “Bare perusal of Section 37 of NDPS Act makes it clear that before enlarging the accused on bail the court has to record a satisfaction that there are reasonable grounds for believing that he is not guilty of such an offence and that the accused is also unlikely to commit any offence after being released from jail”.

Advocate Shyam Sunder Aggarwal appeared for the Petitioner, whereas Advocate Amit Sahni appeared for the Respondent.

As per the brief facts, the case involved the receipt of secret information regarding the transportation of narcotics substances. A specialized team was formed, and surveillance was conducted near Hotel Radisson Blu in Paschim Vihar, Delhi. A person, identified as Kenechukwu Joseph from Nigeria (petitioner), was apprehended. A search led to the discovery of a polybag containing narcotics substances/ contraband. As a result, the present case was registered, and the petitioner was arrested.

After considering the submission and on careful examination of Section 37 of the NDPS Act, the Bench noted that before granting bail to the accused, the court must establish that there were reasonable grounds to believe the accused was not guilty of the alleged offense.

Additionally, the court must be satisfied that the accused is unlikely to commit any further offenses upon release from custody, added the Bench.

The Bench further observed that “observed that “the defect in the withdrawal of the sample and the contradiction pointed out regarding the weight of the sample, FSL reports and seal, I consider that all these issues are the matter of trial and will have to be examined during the course of trial”.

The Bench referred to the case of State of Punjab v. Balbir Singh [(1994) 3 SCC 299], wherein the Apex Court clarified that Sections 52 and 57 of the Act come into play after the arrest and seizure have occurred, and if there is any violation of these provisions, the court must assess the impact of such violations.

Regarding whether the provisions of the Act following an arrest or search are to be considered mandatory or directory, the Bench noted that provisions creating a public duty are generally treated as directory.

The Bench also referred to Quentin Decon v. Customs [BAIL APPLN. 71/2022], where a Co-ordinate bench had emphasized that Section 52 of the NDPS Act is of a directory nature, and non-compliance with this provision alone cannot invalidate the actions of the investigating officers.

Thus, the High Court concluded that the issues raised by the petitioner's counsel regarding the defect in sample withdrawal, contradictions in sample weight, FSL reports, and sealing should be addressed during the trial proceedings before the Special Judge.

Based on these considerations, the High Court held court determined that the petitioner was not eligible for bail. Consequently, the present bail application was rejected.

Cause Title: Kenechukwu Joseph v. The State

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