Delhi High Court: In a bail application for the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) involving alleged recovery of a commercial quantity of contraband, a Single Judge Bench of Anup Jairam Bhambhani,* J., granted bail for NDPS Act procedural violation.
The prosecution case is that the petitioner was implicated based on the disclosure statement of a co-accused. Acting on such disclosure, the investigating officer conducted a search after serving notice under Section 50, NDPS Act, allegedly recovering 360 grams of heroin from the petitioner’s car.
The petitioner was apprehended at about 5.40 p.m. on 17 November 2022 at Jharoda Kalan, Delhi. However, as per official communication from the Positional Astronomy Centre, sunset on that day occurred at 5.28 p.m., thereby establishing that the search was conducted after sunset.
Upon a conspectus of the submissions and material on record, the Court acknowledged that the quantity recovered was commercial, thus ordinarily attracting the stringent conditions of Section 37, NDPS Act.
However, the Court noted that the search was undisputedly conducted after sunset, and therefore strict compliance with the second proviso to Section 42(1) was mandatory. It was noted that the record did not disclose any document showing that the investigating officer had recorded the “grounds of his belief” prior to conducting the search.
Consequently, there was also non-compliance with Section 42(2), since no such recorded grounds were forwarded to the superior officer. Further, the Court found that there was no authorisation under Section 41(2) for the petitioner’s search or arrest. The ACP’s endorsement merely stating “seen” did not amount to authorisation. The cross-examination of the ACP’s reader and the ACP’s own statement confirmed absence of such authorisation.
The Court emphasised that Chapter V, NDPS Act prescribes a carefully structured procedure, reflecting legislative intent to regulate search, seizure, and arrest powers strictly. These provisions are not directory but carry significant safeguards.
The Court emphasised that Chapter V, NDPS Act lays down a meticulous and mandatory procedure for search, seizure, and arrest. These safeguards are not ornamental but substantive, given the grave consequences of NDPS offences. The legislative intent was to “ring-fence” the powers of search and arrest to ensure that those acts are not conducted wantonly.
Relying on the principle in Nazir Ahmed v. King Emperor, 1936 SCC OnLine PC 41, the Court reiterated that “where the law gives the power to do a certain thing in a certain way, it must be done only in that way, or not at all”.
Additionally, the Court considered the petitioner’s prolonged incarceration for over 3 years, only 1 out of 29 witnesses had been examined and completion of trial in the near future was “extremely remote”.
In view of the cumulative circumstances, the Court held that the petitioner was entitled to regular bail pending trial subject to conditions. It clarified that the observations were only prima facie and would not affect the merits of the trial.
[Mohan Babu Gupta v. State (NCT of Delhi), BAIL APPLN. 1450/2025, decided on 28-3-2026]
*Judgment by Justice Anup Jairam Bhambhani
Advocates who appeared in this case:
Mr. Akshay Bhandari, Mr. Janak Raj Ambavat, Ms. Megha Saroa, Mr. Kushal Kumar and Mr. Anmol Sachdeva, Advs., Counsel for the Petitioner
Ms. Shubhi Gupta, APP, Counsel for the Respondent/State
SI Dharmender, P.S.: Spl. Cell NR & STF, Rohini
