Procedural Delay in Sampling Is No Ground for Bail When Commercial Quantity of Heroin Is Recovered – Delhi High Court Denies Bail Under NDPS Act

“When 1 Kg of Heroin Is Recovered, Bar Under Section 37 NDPS Act Applies in Full Force” –  In a significant decision Delhi High Court refused regular bail to the accused, where 1 kg of heroin was recovered from the petitioner’s possession. Justice Ravinder Dudeja held that the statutory bar under Section 37 of the NDPS Act squarely applied in view of the commercial quantity involved, and “the petitioner had failed to satisfy the twin conditions required for grant of bail.”

The bail plea, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 read with Section 36A(3) of the NDPS Act, primarily relied on procedural irregularities, such as delay in sampling under Section 52A and absence of public witnesses or videography. These contentions were squarely rejected by the Court.

“Commercial Quantity Recovery Attracts the Rigour of Section 37 – Bail Can’t Be Granted Merely on Technicalities”

The petitioner had been apprehended in April 2023 on the basis of secret information, when co-accused Tasleema handed over a polythene packet containing heroin to him in a public place. The total recovery from both accused was 2 kg heroin, with 1 kg recovered from the present petitioner alone.

The Court observed: “Since the recovery from the petitioner is 1 kg heroin, the rigour of Section 37 of the NDPS Act would be attracted in the present case.” [Para 14]

It held that the twin conditions under Section 37 NDPS Act – (i) the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty, and (ii) is not likely to commit any offence while on bail – had not been met. [Para 22]

“Delay in Drawing Samples Is a Procedural Irregularity, Not a Ground for Bail” – Court Follows SC Ruling in NCB v. Kashif

One of the key grounds urged by the petitioner was the delay in compliance with Section 52A, as the samples were drawn nearly a month after seizure and deposited in the FSL a week later. The Court rejected this contention relying on the Supreme Court’s 2024 ruling in NCB v. Kashif (2024 SCC OnLine SC 3848), which held:

“Any lapse or delay in compliance of Section 52A is merely a procedural irregularity... It neither entitles the accused to bail nor vitiates the trial.” [Para 15]

Justice Dudeja quoted the Apex Court’s reminder that: “The provisions of the NDPS Act must be interpreted literally and strictly, not liberally, as it would frustrate the object and purpose of the legislation.” [Para 15(iv)]

The Court found that the samples were sealed properly and forwarded with the magistrate’s seal, with no allegation of tampering. Hence, no prejudice was caused to the accused. [Paras 15–16]

“Police Recovery Not to Be Disbelieved Merely for Absence of Public Witnesses” – Efforts Made, But Witnesses Refused to Join

The defence also attacked the case on the ground that no independent public witness was associated with the recovery. The Court noted that efforts were made, as mentioned in the FIR:

“3-4 public persons and e-rickshaw drivers were requested to join the raiding team, but they refused. One Kuldeep, son of Kalu, also declined citing urgent work.” [Para 18]

Citing Surinder Kumar v. State of Punjab [(2020) 2 SCC 563] and Kallu Khan v. State of Rajasthan [(2021) 19 SCC 197], the Court reiterated:

“There is a presumption in favour of police discharging official duties... Recovery by police officials cannot be discarded for lack of public witnesses unless serious doubt is shown.” [Para 18]

“No Videography or CCTV – Not Mandatory Under CrPC”

The petitioner contended that the lack of videography and CCTV footage undermined the prosecution’s version. The Court dismissed this argument as well, observing:

“Videography is not a mandatory requirement... Investigating Officers are not expected to deposit personal mobile phones for the purpose of making recovery footage admissible.” [Paras 11, 19]

It also accepted the prosecution’s explanation that no CCTV camera was installed at the site, which was near Shakur Basti Railway Station. In Imran Ali @ Sameer v. State, Bail Appl. No. 4378/2024, decided on 5 June 2025, this Court had similarly held that non-availability of videographic evidence is not fatal when other evidentiary safeguards exist. [Para 19]

“Duration of Custody Is Not Exceptionally Long – Trial Delay Alone Not Ground for Bail in NDPS Offences”

The petitioner had been in custody since 19 April 2023, and argued that trial delays justified bail. The Court disagreed:

“It cannot be said that he has been behind bars for a phenomenally long period... The duration is insufficient to override the statutory bar under Section 37.” [Para 21]

Dismissing the bail petition, the Delhi High Court held: “In my view, the narrow parameter of bail available under Section 37 of the NDPS Act has not been satisfied in the facts of the present case. I am therefore not inclined to grant bail to the petitioner.” [Para 22]

The judgment reaffirms that mere procedural lapses, absence of videography or public witnesses, or delay in investigation steps, do not dilute the NDPS Act’s rigorous bail restrictions when commercial quantity of contraband is involved. Courts will strictly adhere to Section 37’s twin conditions before granting relief in such cases.

Date of Decision: 24 July 2025