Bail to foreign national in NDPS case

Dwarka Court: In a bail application filed under Section 439 of the Code of Criminal Procedure (‘CrPC’), for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Manu Goel Kharb, J., granted bail to the accused on conditions, upon considering that the request for sampling of the contraband substance under Section 52-A of the NDPS Act was made beyond the reasonable time of 72 hours and no explanation was put forth regarding the delay.


The accused is a foreign national, undergoing trial for offences under Section 21(c) and Section 23(c) of the NDPS Act for being caught with a significant amount of contraband substance, specifically 2975.2 grams of heroin, in his luggage. Both the officers who recovered the contraband have been questioned as witnesses.

Analysis and Decision:

On perusing the statement of the two customs officers (recovery witnesses), the Court noted that the request for sampling the substance under Section 52-A of the NDPS Act was made beyond the reasonable time of 72 hours and no explanation was put forth regarding the delay. The Court noted that the accused was apprehended on 29-10-2021 whereas the application under Section 52-A of NDPS Act was moved on 03-12-2021 i.e. after 34 days of seizure of the substance.

The Court relied on the principles laid down in Union of India v. Mohanlal, (2016) 3 SCC 379 and Kasif v. Narcotics Control Bureau, 2023 SCC Online Del 2881, to shed light on the reasonable time limit for moving an application under Section 52-A of the NDPS Act and the violation of the same accrues benefit to the accused.

The Court opined that the testimony of the recovery witnesses lacked crucial details about the interception of the accused, search, seizure, and the presence of witnesses during the process. The Court also noted that one of the recovery witnesses in response to question regarding informing someone about the arrest of the accused had stated that he did not want to inform about his arrest to anyone, however, in the complaint it was mentioned that the intimation of arrest of accused was communicated to his friend through phone.

Considering the factors, along with the prolonged judicial custody of the accused for about 2 years and 6 months and the documentary nature of the evidence which pointed that there was no likelihood that the accused person can temper the evidence or influence the witnesses, the Court granted bail to the accused, under certain conditions, including providing a personal and surety bond of Rs. 1 Lakh, not to tamper with evidence, not influence witnesses, not to leave the country without permission, cooperation in the investigation, maintaining a working mobile number, informing about address changes, and abstaining from criminal activities during the bail period.

The Court further clarified that any remarks made by the Court regarding the merits of the case were solely for consideration of bail and cannot be construed as expression on the merits of the matter.

[Customs v. Michael Wombua Makau, 2024 SCC OnLine Dis Crt (Del) 12, Order Dated: 03-05-2024]

Advocates who appeared in this case:

Counsel of Customs: SPP Kh. Puneett Singhal

Counsel of Respondent: Advocate Sakshi Kaul

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