Violation of Article 22(1) Alone Doesn’t Vitiate Arrest Unless Prejudice Is Shown: Delhi High Court

On October 27, 2025, the Delhi High Court refused regular bail to both Nigerian nationals booked under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) for possession and suspected manufacture of heroin. Justice Ravinder Dudeja, rejecting the bail applications (BAIL APPLN. 3830/2024 & 3037/2025), ruled that “continued custody is warranted considering the gravity of charges, statutory bar under Section 37 NDPS Act, and the flight-risk posed by petitioners”.

The petitioners had invoked violations of constitutional protections under Article 21 and Article 22(1), alleging non-supply of arrest grounds and procedural irregularities. However, the Court emphasized that “procedural lapses without demonstrated prejudice do not ipso facto invalidate custody”.

Accused Were Caught with 800g Heroin & Manufacturing Material; Fake Passports Discovered During Probe

According to the prosecution, on October 1, 2021, acting on a tip-off, Delhi Police apprehended Henry Okolie and a co-accused with 500g of heroin each, recovered from a scooty near Mohan Garden. Subsequent raids led to the discovery of 4kg chemical powder and manufacturing materials at a house linked to the accused.

On October 4, 2021, at the instance of Okolie and another co-accused, Stanley Alasonye was also arrested from the vicinity and found in possession of 300g heroin.

As investigation proceeded, it emerged that both accused were foreign nationals residing in India illegally, holding forged and fabricated passports. Consequently, offences under Sections 420, 467, 468, and 471 IPC (cheating and forgery), Section 14 of the Foreigners Act, and Sections 21, 25, and 29 of the NDPS Act were invoked.

Petitioners Raised Constitutional Violations and Trial Delay

Petitioners' counsel argued that they had been incarcerated for nearly four years as undertrials, with only 2 out of 13 witnesses examined despite multiple hearings. They contended that:

“The arrest is vitiated due to violation of Article 22(1) of the Constitution and Section 52 NDPS Act, as the grounds of arrest were not provided in writing at the time of arrest.”

They further alleged absence of videography or independent witnesses at the time of recovery and claimed clean antecedents, pleading that prolonged detention would adversely impact their right to fair trial and defence preparation.

Prosecution & FRRO Strongly Opposed Bail on Grounds of Flight Risk and Illegality of Stay

Opposing the petitions, the State and Foreigners Regional Registration Office (FRRO) emphasized:

“Petitioners have no valid immigration records, no legal entry into India, and used fake UK and Singapore passports to evade legal scrutiny.”

The FRRO informed the Court that the petitioners had provided false accommodation and visa details. Their immigration records were non-existent, and the passports bore no arrival or departure stamps, confirming unauthorized entry into India.

“Section 37 NDPS Act Is a Mandatory Bar—Twin Conditions Not Satisfied”

Justice Dudeja ruled that:

“The alleged recovery from the petitioners falls within the category of ‘commercial quantity’. Consequently, the rigors of Section 37 of the NDPS Act would be attracted… The twin conditions under Section 37 are mandatory and cumulative: (i) satisfaction that the accused is not guilty, and (ii) that he is not likely to commit another offence.”

The Court held that neither of these conditions were met by the petitioners and thus statutory bail under the NDPS Act was legally impermissible.

“Non-Videographed Recovery Isn’t Fatal—Police Credibility Presumed Absent Contrary Evidence”

Addressing the absence of video/photo evidence during the recovery process, the Court clarified:

“Use of technology enhances investigation, but in 2021, such tools were not widely available… The absence of videography does not discredit the version of police witnesses.”

Referring to Surinder Kumar v. State of Punjab (2020) 2 SCC 563, the Court reiterated that police testimony enjoys initial credibility unless rebutted.

“Violation of Article 22(1) Alone Doesn’t Entitle to Bail Unless Prejudice Is Shown”

On the constitutional argument under Article 22(1), Justice Dudeja cited the latest ruling of the Supreme Court in State of Karnataka v. Sri Darshan, 2025 INSC 979, where the Apex Court held:

“While Section 50 CrPC is mandatory, procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.”

Applying this, the Court ruled:

“Petitioners have not shown any prejudice suffered due to alleged procedural lapse. Hence, no case is made out for bail on this ground alone.”

“Illegal Entry, False Identity, and Public Trust in Judicial Process—Liberty Must Be Balanced with National Interest”

Though acknowledging the long incarceration of the accused, the Court concluded:

“The seriousness of the charge, weight of evidence, lack of verifiable identity, and the statutory bar under Section 37—all point in one direction. Releasing them would risk compromising both the trial and public confidence in the justice system.”

Bail Denied in View of Serious Offences and National Security Concerns

Holding the petitioners to be flight risks, in illegal stay without proper identification or immigration records, the Court denied bail, stating:

“Petitioners have not shown any circumstances exceptional enough to justify departure from the mandate of law. The continued custody is therefore warranted.”

Date of Decision: October 27, 2025