Delhi High Court Refused Bail to Foreign National in 256g Heroin Case Citing Flight Risk and Threat to Investigation

A Single-Judge bench of Justice Saurabh Banerjee heard a bail application filed under Section 483 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by the applicant seeking regular bail in FIR No.168/2021 (Maurice Nagar). The application arose from an interception on 9–10 November 2021 that led to the recovery of 256 grams of heroin and prosecution under Sections 21/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 14 of the Foreigners Act, 1946.

The court summarised that the recovery involved a “commercial quantity” and therefore the rigours of Section 37 of the NDPS Act applied; bail could be granted only upon satisfaction of the statutory twin conditions. The Court, in its reasoning, observed: “Since the present case is pertaining to recovery of 256 grams of heroin, a ‘commercial quantity’ under the provisions of the NDPS Act, the rigours of Section 37 of the NDPS Act will be applicable and the Court may grant bail, however, upon satisfaction of the twin conditions, being (i) that there are reasonable grounds to believe that the accused is not guilty of the alleged offence, and (ii) that the accused is not likely to commit any offence while on bail.” The judge noted that the applicant’s antecedent conduct — commission of the alleged offence while on bail in an earlier NDPS matter — and his status as a foreign national without permanent Indian residence rendered him a flight risk. The court further observed that “releasing the applicant on bail, at this stage, may result in the applicant influencing the witnesses and/ or tampering with evidence” and held that “granting bail to the applicant could lead to frustrating the administration of justice.” The bail application was dismissed.

Background The prosecution case arose from secret information that two persons of African origin would supply heroin in Delhi. Police intercepted a white Toyota Corolla near Daulat Ram College; both occupants attempted to flee, were chased and apprehended, and were served notices under Section 50 of the NDPS Act. No contraband was recovered from the car or the applicant, but two packets of heroin weighing 42 g and 214 g (total 256 g) were recovered from a brown bag worn around the neck of the co-accused. Both accused were found to hold expired passports and visas and were arrested; FIR No.168/2021 followed.

The applicant contended he was falsely implicated, that no recovery occurred from his person or at his instance, that statutory safeguards (including presence of independent witnesses and photographic/videographic recording) were not complied with, and that night-time interception required prior authorization under Section 42(1) proviso (2) as per Sukhdev Singh. The State pointed out the commercial quantity, the applicant’s presence in the vehicle and shared residence with the co-accused, and the applicant’s prior release on bail in an earlier NDPS case, arguing risk of absconding and interference with investigation. The co-accused had earlier secured regular bail but subsequently jumped bail and faced a non-bailable warrant.

The court recorded that only 2 of 19 prosecution witnesses had been examined and that the question of compliance with Section 42 and other procedural matters required trial scrutiny; it declined to treat absence of photographic or videographic evidence as decisive at the bail stage. Applying precedents including Prasanta Kumar Sarkar, Amarmani Tripathi and Deepak Yadav, the court concluded the twin conditions under Section 37 were not satisfied and dismissed the bail plea. The judge clarified that observations made for adjudicating the bail application would not be construed as opinions on the merits of the case.

Case No.: Bail Appln. 4027/2025 Case Title: Okoli Anayo Franklin v. The State NCT of Delhi Appearances: For the Petitioner(s): Mr. Javed Khan, Advocate For the Respondent(s): Ms. Meenakshi Dahiya, APP for the State; Ms. Vanshika Singh and Mr. Bhanu Pratap Singh, Advocates; SI Akash Deep, Special Staff, North District.