Delhi High Court Dismisses Bail Plea in Commercial‑Quantity Heroin Case, Holds Section 37 Rigours Apply

A Single‑Judge bench of Justice Saurabh Banerjee heard an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 439 Cr.P.C. seeking regular bail in FIR No.93/2021 registered under Sections 21/25 of the NDPS Act. The challenge concerned the applicant's arrest and the legal permissibility of bail in a case involving alleged recovery of a commercial quantity of heroin.

The Court dismissed the bail application and held that the stringent bar in Section 37 of the NDPS Act applied. The Court noted that the twin conditions for grant of bail in NDPS commercial‑quantity cases — that there were reasonable grounds for believing the accused was not guilty and that the accused was not likely to commit an offence while on bail — were not satisfied. The Court observed that the recovery was in personal possession and that the applicant's antecedents did not inspire confidence for release. The Court, in its reasoning, observed: "The Court herein is dealing with 'commercial quantity' under the NDPS Act, as such the rigours of Section 37 NDPS Act are very much applicable. The facts involved are such that neither of the twin conditions are satisfied herein since the applicant has been caught in personal possession of the contraband by the raiding team, there are no reasons to doubt the said recovery. Also, the past antecedents of the applicant involving the same nature of offences do not exude confidence in granting bail to the applicant." The bench further relied on the settled principles in Prasanta Kumar Sarkar, Amarmani Tripathi, Deepak Yadav and Union of India v. Niyazuddin and recorded that mere delay in trial or prolonged incarceration did not automatically override the statutory bar when the public prosecutor opposed bail.

Background: The prosecution case stated that on 22 May 2021 secret information led the Narcotics Cell, Crime Branch to anticipate a large supply of heroin by the applicant. The information was reduced to writing by way of DD No.34A at 18:33 and a raiding team was constituted. After a change of location, the informer identified the applicant at about 20:40; he was apprehended around 20:45 near his scooter. A notice under Section 50 NDPS Act was served in Hindi; the applicant declined search in the presence of a Gazetted Officer or Magistrate and the ACP was called. A search in the ACP's presence produced a white polythene bag containing a waxy pouch with muddy‑brown powder that tested as 280 grams of heroin. The applicant was arrested and a charge‑sheet was filed.

The applicant contended that the Arrest Memo did not disclose the grounds of arrest as required by Article 22(1), that the Memo was in English though he signed in Hindi, and that Section 42 NDPS Act procedures (including departure entry of the ACP and reduction of information to writing before the raid) and safeguards such as third‑party witnesses and video/photography were not complied with. He also relied on prolonged custody—over three years—and incomplete prosecution witness examination to seek bail. The State countered that procedure was followed, Section 50 notice and explanations were given in Hindi, and that absence of a departure entry for the ACP was not material as Roznamcha entries applied to lower ranks; the prosecution relied on the applicant's extensive criminal antecedents, including 25 pending cases, a proclamation as proclaimed offender in earlier proceedings and proven absconding behaviour.

The Court considered precedents cited by both sides and observed that procedural infirmities like non‑production of third‑party witnesses were matters for trial; "whether due process has been adopted is a question of fact to be determined after trial." Having found the statutory bar under Section 37 applicable and both twin conditions unmet, the Court dismissed the bail application. The Court clarified that its observations on merit were for adjudication of the bail plea only and were not final adjudications on the charge.

Case Details: Case No.: BAIL APPLN. 3991/2025 Case Title: SUNNY @ PREM v. THE STATE NCT OF DELHI Appearances: For the Petitioner(s): Ms. Sushma Sharma, Mr. Girish Kumar Sharma and Mr. Dhruv Kumar Sharma, Advocates For the Respondent(s): Ms. Meenakshi Dahiya, APP for State with Ms. Vanshika Singh and Ms. Divya Bakshi, Advocates and SI Ramkishan, ANTF Crime Branch, Delhi